The Republic of Maldives: Introductory Note
Rainer GroteEdited By: Max Planck Institute
I. Background to the 2008 Constitution
The Maldives were governed as an independent Islamic Sultanate for most of its history since 1153. In the nineteenth century the British established a protectorate which allowed them to control the foreign and defense policies of the islands but left the rule of the sultans untouched. A constitution was introduced for the first time in 1932 when an attempt was made to limit the absolute powers of the sultans by making the sultanate elective. In 1953 there was an abortive attempt to replace the sultanate by a republican form of government under the short-lived presidency of Muhammad Amin Didi, the first elected President of the Maldives. However, following the ousting of his government by Muslim conservatives in Male the sultanate was restored in 1954. It continued to operate for a few years after the Maldives had gained independence from the British in 1965 before it was abolished in a national referendum in March 1968. The sultanate was replaced by a Republic although the authoritarian structures of government, which were essentially based on the sharing of political power among a few influential families at the top of the social hierarchy, remained virtually unchanged.
The Second Republic was proclaimed in November 1968 under the presidency of Ibrahim Nasir who was elected indirectly to a four-year presidential term by Parliament (Majlis) on the basis of the new Constitution. In 1973 Nasir was re-elected following a constitutional amendment in the previous year which extended the presidential term of office to five years. Suffering from a steep decline of his popularity after a severe economic crisis had hit the country, Nasir’s rule abruptly ended when he fled to Singapore in 1978.1
Nasir was replaced by Maumoon Abdul Gayoom, a former university lecturer and Maldivian ambassador to the United Nations. Like his predecessor, Gayoom did not allow any legal opposition. He survived several coup attempts in the 1980’s and was reelected to the presidency in 1983, 1988 and 1993. In the most serious coup attempt in 1988, Gayoom had to appeal to the Indian military in order to fight the Tamil mercenaries from Sri Lanka deployed against him. Ten years later a new Constitution was adopted which called for the President to be elected by a general public vote. However, while the President was supposed to be popularly elected by secret ballot, the list of candidates was decided only by the legislature, the exclusively Muslim People’s Majlis. The People’s Majlis selected from this list a single candidate, whose name was only then presented to the public for a vote.2 Under the new rules, Gayoom was elected to two further presidential terms in 1998 and 2003, having been chosen as the sole candidate of the Majlis.
In 2004 President Gayoom, following widespread protests demanding reforms, promised to enact a new, more democratic Constitution. A 114-member Constitutional Assembly representing the existing Parliament, the political parties and the Cabinet was convened in July 2004 to prepare a draft Constitution. In July 2005 a multi-party system was introduced for the first time in the history of the country. Roughly two thirds of the members of the existing Parliament formed the new Maldivian People’s Party which elected President Gayoom as its leader, while the remaining members joined the opposition Maldivian Democratic Party (MDP). Progress in the constitutional talks was slow, given that the MDP remained committed to deposing President Gayoom by direct action ahead of the implementation of the reform agenda, which led to civil unrest and a further abortive coup attempt in November 2006.
In June 2006, the Constitutional Assembly decided to call a national referendum in order to determine the form of government to be introduced under the new constitutional settlement. In the referendum held on August 18, 2007 more than 60 percent of those taking part in the referendum voted for the introduction of a presidential system along the lines proposed by President Gayoom while 38 percent voted for the parliamentary system proposed by the opposition. The opposition claimed that the result was due to massive electoral fraud by the government. Upon proposal of the Maldivian People’s Party, the draft Constitution was amended in January 2008 so as to limit the President elected under the new rules to two terms in office. This fell short of opposition demands that presidential terms served under previous constitutions be taken into account in order to disqualify Gayoom from any new presidential election.
On June 26, 2008 the Constitutional Assembly debated and voted the last amendments and corrections to the draft Constitution. The new Constitution of the Maldives was passed with a majority of 67 out of 114 votes. It was signed and brought into force by President Gayoom on August 7, 2008.
II. Main Features of the 2008 Constitution
1. Islam and the State
The new Constitution retains a number of fundamental features of the previous constitutions of 1968 and 1998. Article 2 of the new Constitution defines the Maldives as a unitary Republic based on the principles of Islam. According to Article 10 Islam is the religion of the state. The provisions introduced in 2008 deepen and extend the Islamic underpinnings of the Constitution. Islam shall be one of the primary sources of Maldivian law.3 No law which is contrary to any tenet of Islam shall enter into force. The comprehensive catalogue of fundamental rights which is guaranteed in Chapter II is not only subject to reasonable limits which can be demonstrably justified in a free and democratic society, but also to laws enacted for the purpose of protecting and maintaining the tenets of Islam: Article 16(b) seemingly exempts such laws from the requirements of Article 16(a), implying that such laws may validly limit and restrict the exercise of the protected rights even if they do not conform to the standards of a “free and democratic society.”
Whereas the old Constitution limited membership in the unicameral legislature, the Majlis, to Muslims and admitted only Sunni Muslims to the office of the presidency—which was given “supreme authority” in propagating the tenets of Islam in the Maldives—the new Constitution does not only confirm the requirement of Muslim credentials for high elective office4 but goes one decisive step further by expressly denying non-Muslims the right to become citizens of the Maldives (Article 9(d)). This means that non-Muslims are not only excluded from the enjoyment of political rights like the right to vote and to take part in the conduct of public affairs (Article 26) but also from most economic and social rights (Article 23), like the right to work (Article 37) and the right to own property (Article 40), which are reserved by the Constitution to citizens of the Maldives. This is a blatant violation both of the UN Charter which requires universal respect for, and observance of, human rights and fundamental freedoms without distinctions based on religion (Article 1(3), Article 55(c) of the UN Charter) and of the UN Covenant on Civil and Political Rights which the Maldives had just ratified in September 2006. While international human rights standards do not prohibit that a state enters into a particular relation with the religion of the majority population, including the establishment of a state religion, such a relationship may not result in violations of the civil and political rights of, or discriminations against, adherents of other religions or non-believers. According to the UN Human Rights Committee, the fact that a religion is recognized as a state religion shall not result in the impairment of the enjoyment of any of the rights under the Covenant, including Articles 18 (freedom of thought, conscience and religion) and 27 (rights of members of religious, ethnic and linguistic minorities). In particular, certain measures discriminating against the followers of other religions or non-believers, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under Article 26.5 As a number of fundamental political, economic and social rights are coupled with the citizenship status, the restriction of citizenship rights to Muslims under the new Constitution constitutes a violation of those guarantees.
The clear commitment to the implementation of Islamic principles in the 2008 Constitution is somewhat tempered by the provisions on the judiciary. Article 142 clearly states that the judges are independent, and subject only to the Constitution and the law. Neither Sharia nor the tenets of Islam are thus binding on the courts. Articles 142 then goes on to say that (only) when they decide matters on which the Constitution or the law is silent the courts must “consider” Islamic Shari’ah. This would seem to give the judges a substantial margin of discretion in the application of the Shari’ah. The determination whether a gap exists in the constitutional regulation or the ordinary law has to be made, of course, by the judges themselves. In other words: the Sharia’ah only comes into play if the courts want to bring Islamic law into play by finding a gap in the existing legislation. Even then they are under no strict constitutional duty to apply the Shari’ah: they merely have to “consider”, or to take into account, the Shari’ah in the disposal of the matter, but remain free to determine its relevance for, and impact on, the case at hand.
2. Fundamental Rights
The new Constitution greatly extends the scope of application of the Bill of Rights. While in the old Constitution the chapter on fundamental rights was limited to 18 Articles, their number has been raised to 53 (!) in the Maldivian Bill of Rights. The rights protected include not only civil and political rights and fair trial guarantees, but also a series of social, economic, cultural and ecological rights, like the right to adequate and nutritious food and clean water, the right to a healthy and balanced ecological environment (Article 23), or the right to participate in cultural life (Article 39). The new Bill of Rights includes the right to run for public office (Article 26) and the freedom to form political parties (Article 30) which are the essential constitutional underpinnings of a multi-party democracy and had been missing in the Bill of Rights of the 1998 Constitution. The enumeration of the protected rights in Chapter II is non-exhaustive (Article 62). Although all rights and freedoms are subject to a general limitation clause (see above 1.), Article 16 takes great care in defining the criteria which the courts must use in determining whether the right or freedom has been applied in accordance with the Constitution. In particular, they must determine whether the objective for which the right or freedom has been limited could have been achieved in another manner which would have limited the right to a lesser degree, and whether the benefits of the limitation for the general welfare outweigh its costs in terms of loss of liberty. The onus of demonstrating that the limitation complies with the requirements of proportionality defined by the Constitution is on the State. When interpreting and applying the rights and freedoms contained in Chapter II of the Constitution, the courts shall promote the values that underlie an open and democratic society, and shall take into account the international treaties (like the UN Covenant on Civil and Political Rights) to which the Maldives is a party (Article 68).
Anyone whose rights or freedoms guaranteed by the Constitution have been infringed or denied may apply to a court to obtain a “just” remedy (Article 65). Article 144 which defines the powers of the courts in constitutional matters clarifies that such remedies include: the invalidation of any statute, regulation, order, decision or action of any person or body performing a public function to the extent that it is inconsistent with the Constitution; an order providing just compensation for any damage sustained by any person as result of the unconstitutional statute or action; and an order suspending the declaration of invalidity for a certain period or limiting its retroactive effect. Article 66 provides that existing laws which are incompatible with the fundamental rights provisions of the new Constitution become void immediately on its commencement, even prior to its amendment or repeal by the legislature in accordance with the schedule set out in Article 299. Similarly, the lack of legislation required for the implementation of certain fundamental rights and freedoms shall not be accepted as an excuse for their violation.
The shortcomings of the new chapter on fundamental rights have already been noted (see 1. above). Under the new Constitution, the exercise of rights and freedoms is generally subject to laws which protect the tenets of Islam whereas in the old Constitution only specific rights (like the freedom of thought) were so limited. However, even such laws must satisfy a test of necessity (see Article 16(c)(6)). Secondly, by defining citizenship in confessional terms the Constitution excludes non-Muslims from a wide range of fundamental rights and freedoms which are reserved to citizens.
3. Separation of Powers
For the first time in the history of the Maldives the new Constitution provides for the election of the President by universal and private suffrage. Under the old rules responsibility for the selection of a candidate rested with the Majlis; the candidate chosen by the Majlis had then to be confirmed by popular vote. Under the new system a candidate must obtain over fifty percent of all votes cast in order to be elected President. If none of the candidates obtains the required majority on the first ballot, a run-off election must be held within 21 days after the first ballot in which only the two candidates who had received the highest number of votes in the first round of voting may take part (Article 111).
The term of office of the President is five years. Under the new rules nobody may serve for more than two terms in the office of President (Article 107). In addition, the first Amendment Act to the Constitution in 2015 (Act 16/2005) has introduced an age limit for the highest executive office: nobody may be elected President who is older than sixty-five years on the date of the election (Article 109 (c)). The same reform reduced the minimum age for election to the presidency from thirty-five to thirty years.
The President retains the powers of Head of State, Head of Government and Commander in Chief of the Armed Forces. By contrast, he has been divested of some of the other functions which he held under the old Constitution. As has already been mentioned he no longer exercises the supreme authority in propagating the tenets of Islam. Whereas under the old Constitution he was the highest authority for administering justice,6 this authority has now been transferred to the Supreme Court (Article 141). Nor is the President any longer the head of the Police of the Maldives7: the oversight over the operation of the Police Service is now shared between the Cabinet of Ministers, the President and the Majlis (Articles 241, 242).
The powers of the President are enumerated in Article 115. They include the power to formulate the fundamental policies of the State, to preside over the Cabinet of Ministers and to appoint and dismiss its members, to conduct and oversee the foreign policy of the country, to appoint members of diplomatic missions to foreign countries, to issue awards and to grant pardons. The role of the Cabinet, on the other hand, is mainly limited to assisting the President in formulating and implementing the general policies of the State (see Article 132). The exercise of the most important presidential powers, like the declaration of war and peace and the declaration of an emergency (Article 257), is subject to approval by the Majlis. The same applies to the foreign policy powers of the President. The President may only enter into treaties and agreements which impose obligations on citizens with the approval of the Majlis. In addition, the President has to consult the Majlis with regard to the appointment of members of diplomatic missions. The appointment of the judges of the Supreme Court by the President is also subject to confirmation by Parliament. All other judicial appointments shall be made by the newly created Judicial Service Commission (Article 148).
The members of the Majlis shall be elected by universal and direct suffrage for a fixed term of five years in single-member constituencies on the basis of the first-past-the-post system in the Atolls and the capital Male (see Articles 71, 72). It exercises the legislative authority (Article 70) and those other powers which are assigned to it by the Constitution. These additional powers cover a wide spectrum of issues, ranging from the control of the operations of the security services to the approval of international treaties and declarations of emergency to the confirmation of judicial appointments (see above). The Majlis’ exercise of its law-making powers is subject to the general proviso that it shall not enact legislation contrary to the tenets of Islam. Since the observance of the tenets of Islam is a constitutional requirement, a statute ignoring those tenets may be struck down by the courts for violation of the Constitution (see Article 144). The President may return a Bill adopted by the Majlis for reconsideration; however, if the Majlis passes the Bill again without amendments the President is under a constitutional duty to assent to the legislation (Article 91). Finally, the Majlis has the power to remove the President and the Vice President from office for violation of a tenet of Islam or the Constitution or other law, serious misconduct, or inability to discharge the duties of his office, with a two-thirds majority of its total membership, following an official investigation of the matter (Article 100).
The new Constitution also establishes a number of new commissions like the Elections Commission, the Civil Service Commission, and the Judicial Service Commission which shall ensure that the functions assigned to them, like the conduct of elections or the recruitment of judges and civil servants, are carried out with a high degree of independence and impartiality. The Human Rights Commission shall contribute to the strengthening of human rights by promoting the general awareness of human rights, but also by taking more specific measures for investigating the observance of human rights and by securing appropriate redress in cases where human rights have been violated (see Article 192). The Anti-Corruption Commission, on the other hand, has the duty to investigate any complaint, information, or suspicion of corruption and to recommend prosecution of alleged offenses to the Prosecutor General (Article 202).
The second amendment to the Constitution adopted by the Majlis on July 22, 2015 has introduced a new Chapter XV which allows foreign investors for the first time to acquire full ownership rights of land in the Maldives. The principle stated in Article 251 (a) of the Constitution, that no foreign party shall own or be given ownership of any part of the territory of the Maldives, is modified accordingly. The new provisions now allow absolute foreign ownership of land in Maldives subject to the conditions defined in Article 304. These conditions are the following: a) the investment project has to be approved by a special law enacted by the Majlis; (b) the investment must be above one billion US dollars; (c) seventy per cent of the land required for the realization of the investment has to be reclaimed from the sea. In addition, the availability of full ownership rights for land under the new constitutional provisions is limited to 10 per cent of the total land in the territory of the Maldives (Article 303). The reform aims to attract foreign investments in an effort to boost the Maldivian economy and could have important strategic implications due to its location in the Indian Ocean region, as China which already has substantial experience with massive land reclamation activities in the South China Sea is looking for investment opportunities in infrastructure projects in the Indian Ocean region which it could link to its 21st Century Maritime Silk Road Project.8
1 K. Ryavec, Maledives, in: H. Metz (ed.), Area Handbook Indian Ocean: Five Island Countries, 1995, at 258/259.
2 Art. 35 of the Constitution of the Maldives 1998; J. Go, A Globalizing Constitutionalism? Views from the Postcolony, 1945–2000, International Sociology 18, at 86 (2003).
3 On the meaning and scope of this provision see Shamsul Falaah, Islamic Constitutionalism in the Maldives: Islamness of the Maldivian Constitution and Laws (infra).
4 Article 109 retains the requirement that the President must be a Muslim and follower of the Sunni school of Islam, while the new Article 73 contains a parallel limitation of membership in the legislature to Sunni Muslims. By contrast, the mission of the resident to propagate the tenets of Islam has been from the constitutional text.
5 Human Rights Committee, General Comment No. 22 The Right to Freedom of Thought, Conscience and Religion (Art. 18), para. 9, N oc. CR/C/21/Rev. 1/dd. 4 (July 30, 1993).
6 See Article 39 of the Constitution of 1998.
7 See Article 33 of the Constitution of 1998.
8 See Darshana M. Baruah, The new Maldivian Constitution amendment: a strategic perspective from India, at: https://www.offiziere.ch/?p=22745.