The constitution, the courts and parliament : an analysis of the judicial power in reviewing functions of parliament in Maldvies

Abstract

In 2008, the Maldives adopted a new democratic Constitution which separated the three branches of government; the legislative, the executive and the judiciary. The Constitution of the Republic of Maldives vested these three branches of government with specific powers and functions. Despite constitutions specifying the powers and functions of each branch of government, there are allegations of attempts by branches of government to reach beyond the boundaries of the constitution. This research examines the increasing allegations that the Supreme Court of Maldives limiting the powers of the parliament and performing functions of the parliament. This research utilizes tools of qualitative methodology to further comprehend the constitutional concepts relevant to this research. Through document analysis, this research reviews relevant literature on the concepts of separation of powers, parliamentary sovereignty, judicial review and how these concepts were adopted in the jurisdictions selected for the purposes of this research. Secondly, this research examines the historical origin, organizational structure, powers and functions as well as internal procedures established for the functioning of both the parliament and judiciary of Maldives. After which, this research conducts two case studies; a case study on the functioning of the parliament and a case study on the decisions of the Supreme Court and the High Court of Maldives. Furthermore, written interviews were conducted to gather the opinions of stakeholders regarding the effect of the decisions of the apex courts on the effective functioning of the parliament, and possible reformative actions. Based on the case studies and the opinions of the participants of this research, this research finds that the Supreme Court of Maldives have been citing ambiguous provisions of the Constitution to broaden its constitutionally vested power to judicial review, undermining the supremacy of the Constitution, limiting powers of parliament and performing the legislative and oversight functions of the parliament. This research concludes by recommending the establishment of mechanisms to enforce the constitutionally established scope of the judicial review power of the courts. This research also recommends establishing mechanisms that allows branches of government to freely perform their constitutionally mandated functions without being subjected to undue influence and interference from other branches of government.