14 February 2018

We write to you in relation to the State of Emergency announced on 5 February 2018, temporarily restricting numerous fundamental rights, freedoms and liberties. We believe that the emergency status has been imposed entirely unlawfully. Further to that, we call upon the president and the Supreme Court to immediately restore constitutional order and repeal the declaration. The unconstitutional declaration of the state of emergency has resulted in state institutions acting outside their legal parameters, encroaching on citizens’ basic rights. The details of our concerns are as follows:

1. Unconstitutional declaration of the State of Emergency

(a) Article 253 of the Constitution states that “In the event of natural disaster, dangerous epidemic disease, war, threat to national security, or threatened foreign aggression, the President may declare a state of emergency in all or part of the country for a period not exceeding thirty days.”

In consideration of the current situation in the Maldives, the state of the country on 6 February 2018, and the content of the speech on the same day when the president addressed the nation, it is clear that there is no affliction of natural disaster, dangerous epidemic disease, foreign aggression or war in the Maldives.

A “threat to national security” is defined under Article 274(a) of the Constitution as “a threat to the independence and sovereignty of the Maldives, or a threat of major damage to people’s lives, limbs or property. This includes terrorist attacks and acts of aggression committed using weapons. This, however, does not include the exercise by citizens of their legal rights to conduct peaceful activities in support of, or against various matters without contravening the law.”

The declaration that announced the State of Emergency does not specify the “threats to national security” it refers to. Additionally, we are of the view that, the Prosecutor General or the Attorney General stating that they are unable to perform their constitutional mandate, or their difficulties in communicating with the Chief Justice, cannot be construed as threats to national security. We would like to note that when the Supreme Court restricted the jurisdiction of the Judicial Service Commission in contravention of the Constitution, it is the responsibility of the second power of the State, the People’s Majlis, to take appropriate action. If the president would like to raise such concerns, the People’s Majlis is the appropriate avenue to submit those concerns in accordance with the existing constitutional framework. We condemn the constitutionally irresponsible actions, in gravely restricting fundamental liberties after stating that there exists a threat to the security, and perpetrating actions outside of the said constitutional framework to declare a State of Emergency.

Furthermore, if criminal proceedings need to be brought against a judge, and if there are impediments to the investigation, we call on the president to seek a remedy grounded in legal conventions and norms of the country instead of declaring a State of Emergency.

As the Supreme Court order number 2018/SC-SJ/01 repealed its order number 2017/SC-A/17 under number 1 of the verdict, reinstating the Members of Parliament and ordered for the first session of parliament in 2018 to begin according to the law, as stated under number 4 of the order – the indefinite delay of the parliamentary session is unconstitutional.

The actions of the Government following the State of Emergency makes it abundantly clear that the situation has been manufactured to obstruct and indefinitely delay the upcoming elections. We are deeply concerned that the current state of the country could potentially deprive the people of the Maldives from the right to vote and contest in elections, as guaranteed under Article 26 of the Constitution.

Although the said declaration; states that “many institutions” provided information to the president, which resulted in his belief that the political situation had escalated to an extent that could impede the country’s sovereignty, it does not cite any specific State institutions. The fact that the decision was reached solely after consultation with an executive agency, under the direct control of the president, perfectly illustrates that these actions have been taken completely outside the confines of democratic norms.

(b) While Article 254 states basic liberties and freedoms, found under the Chapter 2 of the Constitution, which can be restricted during a State of Emergency, the constitutional provisions restricted by the decree exceeds these limitations. Those articles illegally restricted include 99, 100, 101, 113, 14(c) and 228 of the Constitution.

The people of the Maldives have not been appropriately informed about the basis behind the restriction of the said provisions. Imperative state institutions have been effectively paralysed due to these restrictions, further exposing that the decree on the State of Emergency was issued outside of constitutional means.

Furthermore, we recall the issues highlighted under the statement issued on 10 February 2018, signed by 62 lawyers from the Maldivian legal fraternity, and call upon the president and the relevant state institutions to respect their expert opinion.

2. Actions of the Maldives Police Service Violate the Constitution, Laws and Regulations

(a) Whereas Article 255(b) states that “measures adopted in an emergency shall not restrict the rights and freedoms contained in the following Articles of this Constitution”, including Article 48, which contains the rights guaranteed upon arrest, such as the right to legal counsel prescribed under subsection (b) of the said Article, was illegally restricted for arrestees, resulting in many arbitrary detentions.

(b) Despite the guaranteed freedom of peaceful assembly as per Article 32 of the Constitution, the police officers that have obstructed opposition rallies, forcefully and violently arresting its participants, after physically attacking them are in contravention of Article 47(a), which requires “reasonable cause” prior to subjection of a search and seizure. In that regard, we condemn and regretfully note that female officers have assaulted female demonstrators, subjecting them to inhumane and degrading treatment that contravene acceptable social conduct, resorting to verbally abusing female participants of the rallies, in violation of the Police Act 2008. When officers acting in such a manner operate with impunity, it paves the way for a culture of uncivilised behaviour to permeate the institution. A result can be that the institution could descend to a level whereby citizens no longer have respect or admiration for the security services.

Further to that, we note that the practice of forcefully raiding individuals’ private residences to confiscate their property is in violation of Article 47(b) of the Constitution, which states: “Residential property shall be inviolable, and shall not be entered without the consent of the resident, except to prevent immediate and serious harm to life or property, or under the express authorisation of a court order.”

As such, the security services committed ultra vires actions that violate the above-mentioned constitutional provisions when officers stormed the Supreme Court without a court order or permission and similarly entered the residence of former President Maumoon Abdul Gayoom.

(c) Article 17(a) of the Constitution states: “Everyone is entitled to the rights and freedoms included in this Chapter without discrimination of any kind, including race, national origin, colour, sex, age, mental or physical disability, political or other opinion, property, birth or other status, or native island.” In addition to that, Article 246(a) reads: “Members of the security services shall treat all persons and groups equally without any discrimination, and with humanity and dignity in accordance with the decorous principles of Islam.” The practice of obstructing rallies held by those with opposing political views, while allowing and facilitating rallies that are pro-government, contravenes the provisions mentioned above.

Article 245 of the Constitution states: “No person shall give an illegal order to a member of the security services. Members of the security services shall not obey a manifestly illegal order.” We call upon police officers to refrain from committing such acts, and to respect the Constitution by non-compliance with illegal orders. As is common knowledge, number 16 of Article 7(a) of the Police Act 2008 stipulates that police officers “should not obey a command or an order given by a senior officer that is contradictory with the duties of the police.” We would like to take this opportunity to remind each and every member of the police service that the said statute contains a legal obligation that is binding upon all officers.

(d) Article 44 of the Constitution prescribes: “The application of the criminal law or criminal procedure, including the conduct of investigations, criminal proceedings and enforcement of sentences as provided by law, shall extend to the accused person only and shall not affect the legal rights or obligations of any other person.” Despite the constitutional provision, we note with serious concern that wives and children of judges and MPs have been detained in the name of conducting investigations. We view it as acts of intimidation when those individuals working in state institutions are arrested in such an unconstitutional manner. In that regard, we call upon the National Integrity Commission and the Human Rights Commission of the Maldives to investigate and take due action against the officers who commit atrocious acts and those within the top ranks of the security services ordering such illegal acts. As the government is abruptly targeting specific individuals after declaring a State of Emergency, the families of these individuals are subjected to intimidation and fear, resulting in the sense that they are outside the protection of due process, which could in effect cause psychological trauma. Our concerns that the rights of these families have been violated are furthermore substantiated when these illegal actions are being perpetrated through state institutions. To deteriorate the state of the Maldivian society to such a degree is absolutely unacceptable.

If these actions continue without restraint, it would completely collapse the constitutional order of the State. The people of the Maldives would not able to recover from the repercussions imposed by these actions for years to come. In line with the aforementioned, we call upon the Government of the Maldives to repeal the State of Emergency immediately, and revert all actions perpetrated under the basis of this ‘emergency.’ Furthermore, we call upon the security services to maintain their actions within the legal ambit.