Update on the Current Situation in the Maldives (26/02/2018): State Of Emergency

1. Decree declaring the State of Emergency (2018/3) – 5 February 2018

a) Under Article 253 (State of Emergency) of the Constitution of the Republic of Maldives which allows the declaration of a State of Emergency, in all or part of the country, pertaining to an event of natural disaster, dangerous epidemic disease, war, threat to national security, or threatened foreign aggression, the State of Emergency, having no curfew, was declared for 15 days.

b) The State of Emergency was declared for 2 reasons:

– Under advice of the National Security Council for threat to National Security.

– Constitutional deadlock resulting in the State functioning out of the Constitutional boundaries.

c) The State of Emergency was imposed on individuals alleged to have carried out illegal activities and the places they resided in relating to the investigation of the crimes.

2. Under the State of Emergency, the following Articles of the Constitution were restricted:

1. Article 24
2. Article 29
3. Article 31
4. Article 32
5. Article 43
6. Article 44
7. Article 45
8. Article 46
9. Article 47
10. Article 49
11. Article 50
12. Article 56
13. Article 58
14. Article 65
15. Article 99
16. Article 100
17. Article 101
18. Article 113
19. Article 145 (c)
20. Article 228

a) The following legislations were also temporarily suspended:

1. Section 12 and section 14 of Act No. 13/2010 (Maldives Judges Act).

2. Act No. 12/2016 (Criminal Procedure Code).

3. 1st Amendment to the Decree declaring State of Emergency (2018/4) – 6 February 2018

a) Pursuant to the State of Emergency declared by Presidential Decree No.2018/3, an Amendment to the Decree (2018/4) was declared on 6 February 2018 and in addition to the temporary suspension of the operation of laws and the rights and freedoms restricted or limited by said Decree, the following Article and subsections of the Constitution was restricted:

– Article 48(a), 48(c) and 48(d)

4. 2nd Amendment to the Decree declaring State of Emergency (2018/5) – 6 February 2018

a) In addition to the 1st Amendment to the Decree, a 2nd Amendment was made pursuant to the Constitutional, legal and regulatory issues, and the situation which arose in trying to enforce the Supreme Court Order No. 2018/SC-SJ/01.

b) The restriction imposed on Section (c) of Article 145 of the Constitution pursuant to the aforementioned Presidential Decree was lifted in this Amendment.

5. Submission of Decree with the Amendments to the Parliament – 7 February 2018

a) As obliged by Article 257 (a) of the Constitution, the President submitted the Decree declaring State of Emergency (2018/3) along with its consequent Amendments (2018/4 and 2018/5) to the Parliament on 7 February 2018.

d) Article 257 (a) of the Constitution states that,

“The declaration of a state of emergency shall be submitted to the People’s Majlis within forty eight hours. If the People’s Majlis is not in session at the time of the declaration, it shall be re-called within fourteen days, inclusive of holidays, and the declaration of a state of emergency submitted to the People’s Majlis for approval.”

6. Submission of request for the extension of Decree to the Parliament – 18 February 2018

a) The President submitted a request to the Parliament to obtain the approval of the People’s Majlis for the extension of the State of Emergency pursuant to Article 257 (c) of the Constitution.

– Article 257 (c) of the Constitution states that,

“Where the President deems it necessary to extend the length of the state of emergency, he shall submit the extension to the People’s Majlis prior to the expiry of the state of emergency, and obtain the approval of the People’s Majlis for such extension.”

b) The President submitted this request to the Parliament on the basis that;

– The threat to national security has not diminished and the Constitutional crisis has not been resolved,

– A continued period of Emergency was advised by the National Security Council.

7. Special Session of Parliament – 19 February 2018

a) On 19 February 2018, the Parliament sat in a Special Session to table the issue of the State of Emergency mandated in Article 257 (a) of the Constitution.

– Article 257 (a) of the Constitution states that,

“The declaration of a State of Emergency shall be submitted to the People’s Majlis within forty eight hours. If the People’s Majlis is not in session at the time of the declaration, it shall be re-called within fourteen days, inclusive of holidays, and the declaration of a State of Emergency submitted to the People’s Majlis for approval.”

8. Approval of Decree declaring State of Emergency by Parliament – 20 February 2018

a) By virtue of Article 257 (b) and (c), on 20 February 2018, the Parliament with 38 votes, among 41 Parliament Members in attendance, voted to give approval to the Presidential Decree of 5 February 2018 and its consequent Amendments to extend the State of Emergency and provide relief to some of the rights restricted under it on the basis that the State of Emergency will be imposed on individuals alleged to have carried out illegal activities and the places they resided in relating to the investigation of the crimes relating to 1st February 2018 as per the Decree.

– Article 257 (b) of the constitution states that,

“The People’s Majlis may at any time:

1. approve the declaration in whole or in part;
2. extend the operation of the declaration for periods not exceeding thirty days at a time; or
3. revoke the declaration.”

– Article 257 (c) of the Constitution states that,

b) The Presidential Decree and its Amendments declaring the State of Emergency were extended by an additional 30 days by the Parliament.

c) The Parliament had decided on 20 February 2018, that in addition to approving and extending the State of Emergency, they would also lift restrictions on the following 4 Articles of the Constitution.
– Article 100
– Article 101
– Article 113
– Article 228

d) The Parliament also decided that the State of Emergency would be applicable on individuals alleged to have carried out illegal activities and the places they resided in relating to the investigation of the crimes relating to 1st February as per the Decree.

e) During the debate some Members of Parliament raised questions regarding the quorum necessary to take such a decision.

f) Article 87 (b) of the Constitution states that, any issue requiring the compliance of citizens requires a simple majority of the entire membership of Parliament.

g) The Parliamentary Rules of Procedure, states the circumstances that Article 87 (b) is in reference to, and the declaration of the State of Emergency is not included as a matter which requires compliance by citizens as per Section 38 of the Parliamentary Rules of Procedure.

– Section 38 of the Parliamentary Rules of Procedure states that;

“As, it is mentioned in section 87(b) of the Constitution of the Republic of Maldives, voting on any matter requiring compliance by citizens shall only be undertaken when more than half of the total membership of the Parliament are present at the sitting at which the matter is vested upon. For the purpose of these Parliamentary Rules of Procedure, matters requiring compliance by citizens would be referred to the following:

i) Voting on a Bill (Statute) that obliges the citizens to act upon in a particular manner.
ii) Voting on a Bill (Statute) that imposes the citizens to act upon in a particular manner or not.
iii) Voting on a Bill (Statute) that requires citizens to spend any money.

iv) Voting on a Bill (Statute) that imposes taxes on citizens.
v) Voting on a Bill (Statute) that holds a citizen liable depending on the commission of an act or not.
vi) Voting on a Bill (Statute) regarding personal liability of citizens.”

h) Hence, the session of Parliament approving and extending the State of Emergency proceeded under the understanding that the quorum needed to pass the Presidential Decree and their consequent Amendments were guided by Article 86 of the Constitution, which stipulates that only 25% of the total membership would constitute quorum; and

i) The Parliament decided to seek Advisory Opinion of the Supreme Court, on the matter of voting Quorum (Article 87 (b)) of the Constitution vis-a-vis Section 38 of the Parliamentary Rules of Procedure and as per the provisions provided to them under Article 95 of the Constitution mandating them to do so.

e) Article 95 of the Constitution states that,

“The People’s Majlis may by resolution refer to the Supreme Court for hearing and consideration important questions of law concerning any matter, including the interpretation of the Constitution and the Constitutional validity of any statute. The Supreme Court shall answer the questions so referred and shall provide the answers to the People’s Majlis, giving reasons for its answers. The opinion shall be pronounced in like manner as in the case of a judgement on appeal to the Supreme Court.”

9. Submission of case by Attorney General to the Supreme Court – 21 February 2018

On 20 February 2018, pursuant to the Parliament’s decision to seek Advisory Opinion of the Supreme Court, the Attorney General (representing the Parliament) submitted its case to the Supreme Court on 21 February 2018.

10. Issuance of Temporary Order by Supreme Court – 21 February 2018

a) On 21 February 2018, the Supreme Court issued a temporary Order in reference to Article 141, Article 144(b) and Article 145(c) of the

Constitution of the Republic of Maldives, ordering the Parliament and the relevant State authorities to act upon the Parliament’s resolutions approving and extending the Presidential Decree (Decree No: 2018/3), inclusive of the Amendments, by 30 days implementing a State of Emergency in the Maldives.

– Article 144(b), of the Constitution states that, when deciding a constitutional matter within its jurisdiction, a court:

“may in connection with a declaration issue any order that is just and equitable, including:

i) An order providing just compensation for any damage sustained by any person or group of persons due to any statute, regulation or action that is inconsistent with the Constitution; or

ii) An order suspending the declaration of invalidity (of a statute, regulation or action due to inconsistency with the Constitution) for any period and on any conditions, to allow the competent authority to correct the defect:”

f) Article 145(c), of the Constitution states that,

“The Supreme Court shall be the final authority on the interpretation of the Constitution, the law, or any other matter dealt with by a court of law.”