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Show of hands or a secret ballot?

Article posted in Anti-MDP forum by "goodnessbeyonddylan" - 25 July 2004

We are bringing this article in the hope of opening the floor for debate over this issue that is delaying the amendment of the country's constitution and maintaining the unity shown by reform groups and organisations so that factions do not appear in this great national endeavour. We would like take this opportunity to remind all organisations what we are trying to achieve. WE are after all fighting for a common goal. A Maldives that respects human rights, that Rule of Law prevails and opportunities for individual growth to be achieved in a democratic society that adheres to our Islamic and cultural roots - Dhivehi Observer Editorial board

The procedural arrangements for electing a President to the Citizens’ Special Majlis have come under intense scrutiny over the past several days. To distinguish the issue more specifically:

Under present constitutional arrangements, should the election be carried out by a) a show of hands, or b) secret ballot

There is no question that the matter is one of constitutional interpretation, hence, as such, let me make a few salient prefatory remarks.

a) Constitutional interpretation should ideally be conducted by independent judiciary bodies, a constitutional court for instance. The issue may not be decided in a legislative body, neither may it be settled in the office of the attorney general for example, who is in effect the judicial representative of the executive.

b) There is no one correct approach to constitutional interpretation. Such interpretation in continental Europe, the UK and elsewhere follow different sets of interpretive standards and styles.

c) As much as the central role of a constitution, in a society governed by the rule of law, should be recognised it must not be an end in itself. This is to say that the constitution should be acknowledged merely as a social contract, as it were, to further the means of co-operation between the different members of society, emergent societal institutions and the state.

Let me now try and situate the above remarks with specific reference to the Maldives.

a) As far as I am aware the highest judicial authority is the President, which in itself lends to structural and functional confusion. This I take to be a first, yet glaring, indication that, in the Maldives, constitutional affairs, and political affairs in general, are to be approached with the utmost sophistication and forethought. This then requires that we appreciate the complex mechanisms of social control and the undeniable restrictions on the freedoms of expression and association – the most basic of civil liberties without which a democracy can only be one in name – that exist in the Maldives. This aspect will prove to be crucial in the analysis that follows. At this point, however, it would suffice to distinguish the Maldives as the exception rather than the rule. This should then logically extend to matters such as constitutional interpretation.

b) A preliminary consideration would be to identify which particular tradition of constitutional interpretation we are following, if at all we are following one. Obviously the general character of our laws and regulations, methods of law making and organisation of the judiciary etc should determine this. In this regard then, especially in matters of public law, I think it would be safe to assume that we are following a British common law system. It may also be helpful to note here that, as far as the Islamic Sharia is concerned, issues of public law, namely those mediating between the state and its citizens remain shrouded in ambiguity with a variety of interpretations being put forward. I would attribute this deficiency to the particular limitations in elaborating on a viable political philosophy within Islam. Let me hastily add, however, that this remark is more a critique of the prevalent styles and beliefs surrounding Quranic interpretation rather than a rejection of Islam as such. But I digress. Moving back onto the issue at hand, let me register the presumption that we are following, with some exceptions perhaps, a common law approach to interpretation.

c) That we should take the constitution in context – that is, in the end, purely as a means of optimising societal interaction – is, I believe, perhaps the most important for our purposes. The consideration that the Maldives, in terms of political maturity and consequent structural organisation, is a formative society – the exception rather than the rule – also underscores such a view. Further credence is warranted if we analyse the mechanisms of social control that dominate contemporary Maldivian society.

In light of the above considerations, let me now say a few words on the particular form of interpretation common to the tradition of jurisprudence we seem to be following.

• The basic method of interpretation is what is known as the literal rule. A report compiled on the issue of the walkout by the 24 members of the Special Majlis by Alhan and few others seems to take this approach in their reading of the constitution to the effect that there could be no valid protest to the decision of the interim president, Hon. Abdullah Hameed, to proceed with a show of hands in the election. On account of the contributions that have been made to our rapidly developing ‘public sphere on the net’, as it were, it seems to me that such a view is commonly held.

This seems to stem from the following basic assumptions:

A) If the constitution necessitates an election by secret ballot it would be explicitly so mentioned in the constitution itself. This seems to be the view taken by Dr Saeed in his arguments for an election by a show of hands. Provisions for electing the President through secret ballot is explicitly made in Article 35 of the constitution whereas Article 97, dealing with electing a president to the Special Majlis, makes no such explicit mention of a secret ballot.

B) If, as some allege, the constitution required election by secret ballot of the president of the Special Majlis, on account of Article 133, all those qualifying to vote under Article 134, which would in effect mean the vast majority of our population, should be able to vote in this particular election as well. This would most likely be a practical impossibility, given the particular nature of the Special Majlis and its operational parameters and mandate. It then follows that as Article 134 implies a clear impossibility Article 133 too cannot be relied upon in interpretation. This relies on the principle of non-discrimination between constitutional articles.

I would argue that such a literal reading of the constitution fails to take into account the particular circumstances that surround the case and attaches an undue sanctity to the word of the constitution without a deep appreciation of what is at stake here. The way out is provided by alternatives to the literal rule of interpretation.

• If the literal rule, when applied, gives rise to absurdities, taking into account the particular circumstances surrounding the case, constitutional interpretation may proceed on the golden rule, where the authority vested with the mandate of interpretation deems necessary an interpretation going beyond the literal to give effect to public policy or some other such consideration. Furthermore, there are other rules of interpretation that require interpretation to look behind the policy and objectives of the constitution and also to understand the context in general. Hence, the literal rule of interpretation is only the first step, and by no means the conclusive one, in constitutional interpretation.

In my view then, taking into account the formative and exceptional circumstances of the Maldivian polity and its structural immaturity and the extensive forms of social control, a vote by secret ballot should be preferred to one by a show of hands. Admittedly, it may not be unconstitutional to vote by a show of hands, to that much I would accede. At the same time, it cannot be unconstitutional to vote by secret ballot. In my view, however, when taken in context the latter view should be preferred to a show of hands where the considerations of intimidation and irrational loyalty and fear may unduly influence the election process.

To throw the issue at hand in to further relief let me pose to you the question – what have we got to lose by voting by secret ballot and what have we got to lose by a show of hands? With the particular social control systems in place, would you rather register your discontent with the government in person or through an anonymous letter? Isn’t that why most of us, especially those critical of the government, choose to write under imaginative pseudonyms on message boards such as this?

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