EFTA01181546.pdf

REPORT OF THE COMMISSION OF NATIONAL INQUIRY, MALDIVES EFTA01181546  TABLE OF CONTENTS Page I. EXECUTIVE SUMMARY 1 H. THE MANDATE 4 HI. THE PROCESS 6 A. Composition 6 B. Facilities and Resources 7 C. Principles 8 D. Evidence 9 E. Documentation and Records II F. Communications II G. Work 12 H. Deliberations and Decision-making 12 1. Reporting 13 J. Conclusion on Process 14 IV. THE LAW 15 A. The General Constitutional Framework 15 B. Fundamental Rights and Freedoms 16 C. Disobeying Unlawful Orders 19 D. Presidential Succession 21 E. Resignation and Succession 21 F. Coercion in law 22 G. Coup 22 V. THE CRITICAL EVENTS OF 7 & 8 FEBRUARY 2012 27 VI. THE FACTS 29 EFTA01181547  A. The Timeline of Events 29 B. The General Political Context 29 C. Conflict with the Judiciary 32 D. Specialist Operations at Artificial Beach 35 E. Attempt To Arrest and Punish the Specialist Operations 38 F. Three Critical Participants 43 G. Critical Events within the MNDF HQ 45 H. Other relevant events 46 I. Steps Leading to President Nasheed's Resignation 46 VII. OBSERVATIONS & CONCLUSIONS 51 A. Context 51 B. Transfer of Power 52 C. Illegal Coercion 53 VIII. RECOMMENDATIONS 61 EFTA01181548  I. EXECUTIVE SUMMARY The Commission of National Inquiry (the "Commission") was established pursuant to Presidential Decrees Nos. 2012/2 and 2012/3 and reconstituted pursuant to Presidential Decree No. 2012/4 under Article 115(o) of the Constitution of the Republic of Maldives (the "Constitution") to conduct "independent and impartial investigations of the following issues; the events that transpired in the Maldives from the 14'h of January 2012 to the 8th of February 2012, the change of government on the t h February of 2012, whether the resignation of the then President Nasheed was illegally coerced, and whether the government changed legally on 7th February 2012." In doing so, the Commission was mandated to "explore the facts, circumstances and causes of the events of 7th February 2012 that resulted in the transfer of power in the Maldives." The Commission worked over a period of six months. It sat in Male and visited all principal sites. A total of 293 witnesses were interviewed by the Commission over the course of 224 hours. Fifteen witnesses were interviewed more than once. Among other things, the following documents were comprehensively reviewed by the Commission: • The Constitution of the Republic of the Maldives • The Maldives Penal Code 2004 • The Armed Forces Act 2008 • The Police Act 2008 • Presidential Decree Nos. 2012/2, 2012/3, 2012/4, 2012/5 • Commitment to Strengthen the Commission of National Inquiry in the Maldives signed by the Government of Maldives and the Commonwealth Special Envoy • Commitment to Strengthen the Commission of National Inquiry in the Maldives signed by President Nasheed and the Commonwealth Special Envoy • The Commission of National Inquiry — Rules of Procedure • The Timeline of Events published on 6 June 2012 by the Commission prior to its reconstitution Page 1 of 62 EFTA01181549  • "A Coup backed by Police and Military," by Ameen Faisal and Mohamed Aslam • "The Central Role of Mohamed Waheed in the Maldives Coup=" a note by the Maldives Democratic Party • Press Reports in the international media, in particular, Reuters and Agence France-Presse • Written Statement of President Nasheed dated 8 August 2012 • Report of the Human Rights Commission of the Maldives on human rights abuses in the Maldives on 6 and 7 February 2012 • "Resignation Under Duress," by Hassan Latheef • "Arrested Democracy," by Anders Henriksen, Rasmus Kiefer-Kristensen and Jonas Parello-Plesner In summary, the Commission's findings are as follows: • The change of President in the Republic of Maldives on 7 February 2012 was legal and constitutional. • The events that occurred on 6 and 7 February 2012 were, in large measure, reactions to the actions of President Nasheed. • The resignation of President Nasheed was voluntary and of his own free will. It was not caused by any illegal coercion or intimidation. • There were acts of police brutality on 6, 7 and 8 February 2012 that must be investigated and pursued further by the relevant authorities. With regard to the idea that there was a 'coup nothing in the Maldives changed in constitutional terms — indeed, the Constitution was precisely followed as prescribed. Moreover, in terms of the democratic intent and legitimacy of the authority of the Presidency, as foreseen in the Constitution, President Waheed properly succeeded President Nasheed. This coheres with the electoral prescription insofar as President Nasheed and his then-Vice President were on the same ballot and so the electorate was fully informed of the persons and exact role of the candidates for whom they voted and who ultimately took the oaths of office to serve under the Constitution. Page 2 of 62 EFTA01181550 Accordingly, there appears nothing contestable in constitutional terms under the generic notion of a 'coup MI that is alleged to have occurred — quite to the contrary, in fact. The Commission gathered and received a considerable body of material which offered evidence of "the facts, circumstances and causes of the events of 7th February 2012 that resulted in the transfer of power in the Maldives". It was soon apparent to the Commission from all it received and increasingly experienced that the context of the unforeseen transfer of power owed much to the challenges for governance of a young democracy which is deeply divided. Especially relevant are problems with basic institutions of democratic governance, notably the rule of law and administration of justice, the effective functioning of Parliament, and the politicization of the media. Justice may take time, but needs to be speedy and needs to be seen to be done in order to reassure the public and inspire their confidence. This is unlikely to materialise in the absence of the rule of law which depends on effective institutions and the scrupulous conduct of responsible authorities over time. Above all, the Heads of the branches of government must by their own actions conform to the rule of law notwithstanding the political and practical challenges. With a view to strengthening the rule of law and generating confidence, the Commission recommends that some immediate steps be taken. There appears some urgency in this regard to enable the country to pursue its social, economic and political development to the benefit of the people of Maldives. Page 3 of 62 EFTA01181551  II. THE MANDATE The Commission of National Inquiry (the "Commission") was established pursuant to Article 115(o) of the Constitution of the Republic of Maldives (the "Constitution"). The Commission received its mandate under Presidential Decree No. 2012/2 issued on 21 February 2012 and Presidential Decree No. 2012/3 issued on 23 February 2012 (the "Initial Decrees") (Appendices I & II). The purpose of the Commission was to conduct an independent and impartial investigation into the events in the Maldives from 14 January 2012 to 8 February 2012. By letter dated 29 February 2012 (reference No. 1—(A) CBO/PRV/2012/133), President Mohamed Waheed Hassan Manik ("President Waheed"), clarified that, in fulfilling its mandate, the Commission should "explore the facts and circumstances surrounding the transfer of power in the Maldives on 7th February 2012" and that, in this regard, "acquire any information needed from all state institutions, concerned officials of the Government and other people by questioning them" (see Appendix III). The Commission commenced its work on 25 February 2012 and suspended its operations on 16 May 2012 following the signing of the Agreement of Commitment to Strengthen the Commission (the "Commonwealth Agreement") between the Government of the Maldives and the Commonwealth of Nations (the "Commonwealth") on 15 May 2012. Separately, President Mohamed Nasheed ("President Nasheed") agreed to join the Commonwealth Agreement. Consequently, President Waheed issued on 17 June 2012 Presidential Decree No. 2012/4 (the "Decree") (Appendix IV) "entrusting the Commission of National Inquiry with the independent and impartial investigations of the following issues; the events that transpired in the Maldives from the 14th of January 2012 to the 8th of February 2012, the change of government on the 7th February of 2012, whether the resignation of the then President Nasheed was illegally coerced, and whether the government changed legally on 7th February 2012." The Commission was guided in the performance of its functions by the Rules of Procedure ("Ron that were annexed to Presidential Decree No. 2012/4. Rule 1(1) of the RoP stipulated that the Commission was "to conduct an independent and impartial investigation into the events Page 4 of 62 EFTA01181552 in Maldives from 14th January 2012 to 8th February 2012." In doing so, the Commission was to "explore the facts, circumstances and causes of the events of 7th February 2012 that resulted in the transfer of power in the Maldives." Rule 1(2) of the RoP empowered the Commission to alter, amend and update the RoP "as needed by a majority vote of the Commission." The Commission did not require such a vote. By Presidential Decree 2012/9 issued 27 August 2012 (see Appendix V), the RoP were amended to strengthen the immunities of Commission members and staff (new Rule 13(2)). A copy of the amended RoP is attached herewith as Appendix VI. Page 5 of 62 EFTA01181553  III. THE PROCESS A. Composition Three Maldivian citizens constituted the Commission established pursuant to the Initial Decrees: Mr. Ismail Shafeeu — Chairman Dr. Ibrahim Yasir — Member Dr. Ali Fawaz Shareef — Member Pursuant to the Commonwealth Agreement and the Decree, the Commission was expanded and strengthened to include a Maldivian citizen nominated by President Nasheed and a senior judge from Singapore who would co-chair the Commission with Mr. Shafeeu so as to "build on the work of the Commission and to enable an independent and impartial investigation to be conducted." In addition, two Independent Advisers were obtained from the Commonwealth and the United Nations (the "Advisers") to support the Commission. The function of the Advisers would be to observe the conduct of the Commission and advise on the issues as may be required. Thereafter, the Commission was, in accordance with the Decree: • Mr. Ismail Shafeeu — Chairman • Justice ■. Selvam — Chairman • Dr. Ibrahim Yasir — Member • Dr. Ali Fawaz Shareef — Member • Mr. Ahmed Saeed — Member Justice ■. Selvam is a retired judge of the Supreme Court of Singapore. Sir Bruce Robertson, a retired Court of Appeal judge from New Zealand, and Professor John Packer from Canada, a legal adviser nominated by the United Nations, were appointed as International Advisers on behalf of the Commonwealth and United Nations respectively. Page 6 of 62 EFTA01181554 At 18:05 on Wednesday, 29 August 2012, Mr. Saeed tendered his resignation from the Commission. B. Facilities and Resources The Commission conducted its proceedings from 25 February 2012 to 16 May 2012 and from 17 June 2012 to 30 August 2012. The Commission conducted its work from a wing of the Official Residence of the President of the Maldives ("Muleeaage"), while President Waheed has remained in the Vice Presidential residence. The Commission was very ably supported by a Commission Secretariat (the "Secretariat") comprised of 18 staff who are independent civil servants recommended by the Civil Service Commission of the Maldives. The Secretariat was headed by Mr. Ahmed Ali Maniku and Mr. Mohamed Vajeeh, both of whom are retired senior civil servants with impeccable professional records. Translators were hired following an open call and comprehensive interview. The Secretariat performed a range of comprehensive secretarial and administrative functions. These involved the arranging, recording, transcribing and translating of witness interviews, maintaining and safe-keeping a repository of documentary and multimedia evidence received by the Commission, facilitating exchange of correspondence between the Commission and third parties and provision of day-to-day secretarial support for the functioning of the Commission. The Commission also enjoyed the benefit and use of other necessary facilities that enabled it to perform its functions without hindrance. Such facilities included computers, printers, stationary, electronic support, wireless internet, telephone and projection equipment and similar office equipment. All possible resources were made available to the Commission and every request for assistance was duly met. Justice Selvam was assisted by Mr. Urvaksh Doctor pursuant to Rule 6 of the RoP. Furthermore, prior to its reconstitution, the Commission was initially assisted for some days in matters of legal technicality and framework by a Singaporean lawyer and a retired Indian judge (recommended by the Government of India). They had no access to evidence and did not participate in further activities of the Commission. Page 7 of 62 EFTA01181555 It is to be noted that when the Commission felt the need to prolong its term in order to deal with the number of witnesses who had come forward and evaluate other material before it, the Government of Maldives did not hesitate to extend all necessary resources. C. Principles The Commission, together with its Advisers, operated on the following basic principles: • Integrity and Independence The Commissioners were, at all times, to act with independence and integrity in carrying out the tasks and functions of the Commission. The Commission's proceedings and deliberations were to remain confidential at all times and no Commissioner or Adviser was to communicate with or disseminate confidential information to third parties outside of the Commission. The Commissioners were to behave and perform their duties independent of external influences. • Participation The Commissioners were to jointly and actively participate in the discussions and deliberations of the Commission. Their objective was to work together and use their best efforts to reach a conclusion by consensus as provided under Rule 15(5) of the RoP. By consensus of the members of the Commission, the International Advisers were encouraged to make recommendations during Commission deliberations and also assist in the questioning of the witnesses. The Secretariat only provided support for the Commission in response to its express requests, and did not participate in any fact-finding, discussions or deliberations of the Commission. • Good Faith The Commissioners were to act in good faith, at all times, in the best interests of the Commission. They were to be motivated in their conduct by a bona fide regard for the interests of the Commission and to function with a degree of objective and independent professionalism. Every Commissioner was bound to exercise independent judgement and act in his duty towards Page 8 of 62 EFTA01181556 the Commission with honesty and sincerity with regard to the truth or falsity of a proposition and without regard to the outcome of an action. • No Shutting-up and No Shutting-out The Commission was guided by the principle that no witness was to be shut up and no evidence was to be shut out. Witnesses were allowed to speak at length and express their views and grievances openly before the Commission. The Commission would request witnesses to structure their testimonies around events relating to the resignation of President Nasheed, but were not constrained from speaking if they described other events. Witnesses were also given the freedom to request breaks and speak in Dhivehi or English. Finally, the Commission provided an opportunity for every individual in the Maldives to come forward and submit information and views that could assist in satisfying its mandate. • Common Good and Public Interest The Commission understands its mandate as derived from the general framework of the Constitution of Maldives as a democratic State serving the common good in the sense of the combined interests of the whole citizenry in whom the sovereignty of Maldives resides. Thus it is the aim of the Constitution of Maldives, and therefore the aim of the Commission, to contribute to the freedom of the people of Maldives to control and enjoy their sovereignty as the sum of their free wills expressed through democratic means and institutions including the rule of law. The Commission further understands that there exists a compelling public interest, essential for common well-being, that the Commission completes its work in a timely fashion so the Maldives may pursue its political, economic and social development with general confidence. D. Evidence The Commission collected and received considerable testimonial and documentary evidence. It made site-visits to and within the Maldives National Defence Force Headquarters at Bandara Koshi ("MNDF HQ"), the Maldives Police Service Headquarters in the Hussain Adam Building ("Police HQ"), Republican Square and surrounding areas, the Maldivian Democratic Party Page 9 of 62 EFTA01181557 facility at "Haruge", the television station known as Television Maldives ("TVM", formerly MNBC1) and the President's Office. The Commission also walked relevant streets and passages and visited other relevant locations. The Commission interviewed 293 witnesses over the course of 224 hours. This included all the living Presidents of the Republic, Members of the People's Majlis (the "Parliament"), political party leaders and members, former and serving high officials of the civil service and security services as well as concerned citizens. 15 witnesses were interviewed more than once. Documentary evidence included written statements, bank statements, telephone logs, lists of SMS, video and audio recordings, photographs, letters, reports, textual analyses and publications. The Commission also received various documentary materials from the media including logs and records. The Commission issued two notices on 18 March 2012 and 20 June 2012 respectively (see Appendix VII and VIII), requesting the general public to come forward and provide any information that could be useful in fulfilling the Commission's mandate. Additionally, the Commission wrote individual letters to such persons who it felt were in possession of important information, requesting them to appear before it. It is noteworthy that the number of witnesses who volunteered to come forward and provide evidence significantly outnumbered the witnesses who were requested by the Commission to appear before it. In spite of the Commission's lack of power to subpoena witnesses (typical in court proceedings), only one witness declined an invitation to re-appear before the re-constituted Commission. That witness did, however, appear on record before the earlier constituted Commission. One other witness agreed to appear before the Commission on grounds of anonymity, and was allowed to do so; his testimony proved to be non-material to this Report. A list of all witnesses who appeared before the Commission is attached herewith as Appendix IX. Prior to every witness interview, the witness was informed that the Commission was not undertaking a criminal investigation but that it would not have any control over the testimony and evidence provided to the Commission once the inquiry was concluded and the Report was submitted to the government. Further, each interview was conducted solely in the presence of the Commissioners and Advisers. The Secretariat staff charged with operating the video and audio equipment left the room while the interview was taking place. Page 10 of 62 EFTA01181558 Witnesses were given the freedom to be accompanied by their lawyers, secretaries or person of confidence if they so wished. In some interviews prior to its reconstitution, the Commission was assisted by a Maldivian lawyer. E. Documentation and Records The Secretariat maintained all documents and materials that were always available to the Commissioners. Multimedia recordings of witness interviews, translated copies of witness testimonies and other evidence submitted by witnesses were professionally arranged and maintained for use upon request. The Secretariat also maintained records of the witnesses or others who came forward to provide information to the Commission. All witness recordings and submissions, together with media submissions, have been logged and kept under lock and key. The facilities of the Commission (i.e. Muleeaage) have also been always secured by locks and guards. A list of documentary evidence received by the Commission is attached herewith as Appendix X. F. Communications The Commission agreed that it would only communicate with the press and the general public by means of bi-weekly press conferences, occasional press statements and through its website (http://www.coni.org.mv). The Commission treated the press conferences as a forum to answer any pressing issues and matters. The Commission did not appoint a spokesperson to speak on its behalf and all communications were made collectively. The Commission made use of its official letterhead to communicate with relevant agencies and institutions such as the Human Rights Commission of the Maldives ("HRCM"), the President's Office, the Maldives Police Service ("MPS" or the "police"), the Maldives National Defence Force ("MNDF" or the "military") and the Police Integrity Commission ("PIC") as well as individual members of the public. The Commission held nine press conferences and six press statements. Page I I of 62 EFTA01181559  G. Work The Commission followed the directions laid down under the RoP in the performance of its day- to-day functions. The Commission worked as one team in a professional and collegial manner. The Commission's working language was English and it was decided by consensus that its Report would be published in English as the original and authentic text. The Commission worked through the holy month of Ramadan as well as on certain Saturdays. Witnesses were heard as per their convenience and requests for change in date and timings of interviews were granted. The Commission met on a number of evenings to satisfy witness requests and in order to complete its work. The Secretariat was always in support. H. Deliberations and Decision-making The deliberations of the Commission were open and free. Any Commissioner or Adviser was at liberty to advance views without restriction. The Co-chairmen expressly invited the Commissioners and Advisers to propose alternative propositions or explanations of events and to indicate such evidence as would support these. At the request of one Commissioner, further evidence was sought and scrutinized even in the last days of the Commission's work. The Commission deliberated in a closed room; the Secretariat was not involved in any way in the deliberations of the Commission. All evidence received was reviewed and assessed by the Commission prior to the drafting of this Report. Everything was available to all Commissioners and the Advisers as they required. The Commission notes that in many disputes, there can be difficulty in getting to what actually historically occurred as opposed to what an individual now honestly and sincerely believes to have happened. This phenomenon has been very acute in the Commission's inquiry. Many people have heavy commitments to certain positions and on occasion their recollections were simply wrong. They had a recall that could not be correct when viewed alongside videos, photographs and other evidence. It is unhelpful to call this "lying" but it must be allowed for as conclusions are sought. Page I 2 of 62 EFTA01181560 A serious problem has been trying to restrict testimony to what witnesses actually knew from what they had seen or heard. The Commission was not assisted by what witnesses claim to have been told by others (often as hearsay several times removed) or what they picked up on social media (where there often seems to be scant regard for objective truth) or mere conjecture, supposition or a thesis to suit a desired conclusion. A significant problem in getting to the truth has been the level of rumour, suspicion and idle gossip lacking any serious evidential foundation. This has been disseminated and repeated irresponsibly. Women and men have believed and relied on this material to the very great disadvantage of the nation. It has fuelled the division and discord which has sapped the country for six months. Repeating an error does not give it any substance nor does the volume or emotional content of the expression. Sadly there has been an epidemic of baseless allegations against individuals. They seem to be the imaginings of people struggling to understand what happened and why. Just as a question has no evidential value unless the person answering accepts or adopts the fact contained in the question, allegations have no evidential value just because someone has articulated them repeatedly. Many people seem to think that because an allegation has been made, someone is under an obligation to counter or undermine it. When the allegation lacks substance or reality, nothing is required in response. Irrespective of the drawbacks mentioned above, the Commission reached all its decisions by subjecting the evidence to the principles of consensus, logic, probability and consistency. The Commission stresses that there was no interference either in its daily functioning or its deliberations and decision-making. I. Reportink Pursuant to Rules 14(1) and 15(1) of the RoP, the Commission was to "report on its findings to the President, Speaker of the Majlis, Prosecutor-General, Attorney-General and on a read only basis to former President Nasheed" by 31 July 2012. This presupposed that the reconstituted Page 13 of 62 EFTA01181561 Commission would begin functioning from the beginning of June 2012. However, the Commission did not begin functioning until 17 June 2012. In addition, a large number of witnesses responded to the Commission's open call of 20 June 2012 (see Appendix VIII) wishing to be heard and, as a result, an extension of one month was requested and duly received pursuant to Presidential Decree No. 2012/7 issued on 30 July 2012 (see Appendix XI). Accordingly, the Report was due for submission on 30 August 2012. The Commission was of the opinion that the Report should not be drafted "by committee" because of the inherent drawbacks of such method and the limits of time. The Commissioners agreed that a first basic draft would be prepared by Co-Chairman Justice Selvam. This draft was scrutinized individually by each Commissioner and the two Advisers who then met together to share reactions, views and suggestions which led the process of comprehensive modification through discussion, examination of evidence, deliberation, and agreement. The final Report, which was adopted unanimously, was signed by each Commissioner and the two Advisers prior to submission and publication. The Commission decided that it would be in the best interests of the Maldivian public for the Report to be published immediately on its website after the submission of the Report to the stipulated recipients. The Executive Summary in this Report shall be translated into Dhivehi and published on the Commission's website. A full translation of the Report will be provided by the relevant Maldivian authorities. The Commission wishes to emphasize that in the event of any conflict between the English version of this Report and its translation into Dhivehi, the former shall prevail. J. Conclusion on Process The process followed by the Commission and described above greatly assisted the Commission in fulfilling its mandate in the most complete, fair, and responsible manner. This process not only provided the Commission with a robust foundation on which to prepare this Report, but also demonstrates the considerations, efforts and care by which the work of the Commission was undertaken during the period of inquiry in fulfillment of its mandate for the benefit of the nation. Page 14 of 62 EFTA01181562  IV. THE LAW A. The General Constitutional Framework The Maldives is a sovereign, independent, democratic Republic. It is a creation of the Constitution of the Maldives promulgated in 2008 by a Constitutional assembly known as the Special Majlis. It provides for the separation of powers comprising a legislature (the People's Majlis), an executive headed by a President, and an independent judiciary. Article 4 of the Constitution declares that: "All the powers of the State of the Maldives are derived from, and remain with, the citizens." The Maldives takes pride in having constructed a national constitution that succinctly and comprehensively states and supports modem principles of liberty, citizenship and statehood. The principle of the rule of law is fundamental under the Constitution. The laws are made by the People's Majlis (Article 5) which has several other powers and functions. All executive powers are vested in the President (Article 6). The judicial power is vested in the courts of the Maldives (Article 7). All powers of the State of the Maldives must be exercised in accordance with the Constitution (Article 8). The President must exercise executive authority as prescribed by the Constitution and law (Article 106(d)), including to "uphold, defend and respect the Constitution" (Article 106(c)). Page 15 of 62 EFTA01181563 Lastly, the President is obliged "to promote the rule of law, and to protect the rights and freedoms of all people" (Article 115(c)). In the result, the President must govern and execute his function according to the doctrine of rule of law. That is to say, the President must exercise executive authority as provided for in the Constitution and the law. The President may only do things that are authorized or permitted by the Constitution and the laws. He must accept and respect the authorities and institutions of the State and enforce and execute their decision. Article 268 of the Constitution declares that: "the obligations imposed by the Constitution must be fulfilled. Any conduct contrary to this Constitution shall be invalid." In short, the President of the Maldives possesses no autocratic, dictatorial or authoritarian powers. His powers are limited. B. Fundamental Rights and Freedoms The Constitution guarantees the following three indispensible freedoms to the citizens of the Maldives: "Art. 27 The Freedom ofExpression Everyone has the right to freedom of thought and the freedom to communicate opinions and expression in a manner that is not contrary to any tenet ofIslam. Art 28 Freedom of the media Everyone has the right to freedom of the press and other means of communication, including the right to espouse, disseminate and publish news, information, views and Page 16 of 62 EFTA01181564  ideas. No person shall be compelled to disclose the source of any information that is espoused, disseminated or published by that person. Art 29 Freedom ofacquiring and imparting knowledge Everyone has thefreedom to acquire and impart knowledge, information and learning." Further, Article 19 of the Constitution provides that: "No control or restraint may be exercised against any person unless it is expressly authorised by law." The fundamental right enshrined in Article 19 is reinforced by Article 45 which provides that: "Everyone has the right not to be arbitrarily detained, arrested or imprisoned except as provided by law enacted by the People's Majlis in accordance with Article 16 of this Constitution." The fundamental freedom from unlawful arrest is further expanded and explained by Article 46 of the Constitution which states that, "No person shall be arrested or detained for an offence unless the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe that the person has committed an offence or is about to commit an offence or under the authority ofan arrest warrant issued by the court " These provisions embody the doctrine of rule of law as conceived by the English constitutional case Entick v Carrington [1765] 19 ST. TR. 1030. In that case, an action of trespass was brought by the plaintiff against the defendants (who were King's Messengers) for entering his house and seizing his papers. The defendants pleaded a warrant of the Secretary of State which ordered them to search for the plaintiff and bring him together with his books and papers in safe custody Page 17 of 62 EFTA01181565 before the Secretary of State. Lord Camden C.J. held that the Secretary of State did not have any authority under statute or precedent to issue such a warrant. In a most famous passage, he held: "If it is law, it will befound in our books. If it is not to befound there, it is not law." Further, "Every invasion of private properly, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answerfor bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment." The combined effect of Article 19 and Article 45 is that a Maldivian may not be arrested except in relation to an offence that has been committed or is about to be committed, or under an arrest warrant issued by a Court of law. There is one exception to this fundamental constitutional right. That is where a state of emergency has been declared pursuant to Article 253 and 254 of the Constitution, the President may suspend certain fundamental rights, including the freedom from arrest and detention. These Articles read as follows: "Article 253 Declaration of a state of emergency 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 countryfor a period not exceeding thirty days. Page 18 of 62 EFTA01181566  Article 254 Content of the declaration The declaration of a state of emergency shall specify the reasons for the declaration of an emergency, and include measures to deal with the emergency, which may include the temporary suspension of the operation of laws and infringement of certain fundamental rights andfreedonts guaranteed by this Constitution in Chapter 2." Article 274 of the Constitution defines the term "threat to national security" 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 President who declares a state of emergency is subject to the requirements of bona fides and objectivity as directed by Articles 254, 255, 256 and 257. Even when a state of emergency validly declared is in force, certain fundamental rights of a citizen are expressly preserved. These include the right to life (Article 21), freedom of the media (Article 28) and right to retain and instruct legal counsel and assistance of legal counsel (Article 53). More significantly, the right and obligation to disobey unlawful orders is also expressly retained even during a state of emergency (Article 255(b)( 16)). In other words, the Maldives being a sovereign, independent and democratic State, even when a validly declared state of emergency is in force, does not become a totalitarian state and the rule of law remains. C. Disobeying Unlawful Orders Article 64 of the Constitution provides: Page 19 of 62 EFTA01181567  "No employee of the State shall impose any orders on a person except under authority of a law. Everyone has the right not to obey an unlawful order. " The Constitution is significant in expressly enshrining this freedom. The fundamental freedom not to obey unlawful orders is reiterated and applied to the security services (military and police services) in Article 245: "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." While the Constitution affords civil remedies for the breach of its provisions, it is not a penal code. However, Section 74 of the Police Act 2008 criminalizes such unlawful orders and executing such unlawful orders: "Null and void orders (a) Any order or part of an order that is contrary to this Act or the regulations made under this Act, to the extent of inconsistency, shall be null and void. (b) It is an offence for any employee of the Maldives Police Service to knowingly and with intent, issue an order that is null and void. (c) It is an offence for any employee of the Maldives Police Service to knowingly and with intent, obey an order that is null and void." A similar provision is found under Section 18 of the Armed Forces Act. However, it stops short of criminalizing such unlawful orders. The provisions relating to unlawful orders, as will be stated later in this Report, were invoked and mentioned many times in January and February 2012 and also before this Commission. Page 20 of 62 EFTA01181568 The predominant purpose of this freedom and obligation is to give effect to the doctrine of the rule of law and to prevent and proscribe autocratic orders and unaccountable conduct on part of superior officers in the civil service and the Defense Forces, namely the Military and the Police Force. D. Presidential Succession A President having been elected by universal and secret suffrage (Article 108) can have his term come to an end by resignation (Article 121), subsequent election, permanent incapacity or death (Article 123(b)) or removal (Article 100). In the event of a vacancy for any reason other than an election, the Vice President shall "succeed to the office of the President" (Article 112(d)). E. Resignation and Succession Article 121(a) of the Constitution prescribes that: "The President may resign from office by writing under his hand submitted to the Speaker of the People's Majlis, and the office shall become vacant when the resignation is received by the Speaker." Article 114 of the Constitution, in relevant part, prescribes that: "An incoming President shall assume office upon taking and subscribing, before the Chief Justice or his designate, at a sitting of the People's Majlis, the relevant oath of office set out in Schedule I of this Constitution." Further, Article 112(b) provides that: "Every candidate for President shall publicly declare the name of the Vice President who will serve with him." Page 21 of 62 EFTA01181569  F. Coercion in law Coercion, as used in the Decree, refers to the American legal concept of illegal duress or the English legal concept of intimidation. This is a real threat delivered by one or more wrongdoers to another to harm and injure the latter or his family if the victim does not do something as demanded. The first dominant element of the wrongdoing is the threat of an unlawful act, that is, to hurt and harm the victim or his family. A threat to do a lawful act is outside the definition of illegal coercion or intimidation. Anything that a person may lawfully do, the person may also threaten to do lawfully, whatever the motive or purpose of the threat. The second dominant element of the wrongdoing is that fear or compulsion in the victim must arise in response to a real unlawful threat emanating from a wrongdoer and not because of a cause within himself. In the absence of an illegal threat from an intimidator, there can be no illegal duress or intimidation. This threat from an external source is an indispensible element of illegal duress or intimidation. In other words, there can be no illegal duress without an intimidation by an intimidator. Because of the seriousness of the charge, person who alleges illegal duress or intimidation carries the legal burden as well as the evidentiary burden of proof. The standard of proof is that of moral certainty, that is, proof beyond reasonable doubt. G. CouCoup The World Book Encyclopedia (1992) Vol. 4 at page 399 gives a non-technical explanation of the expression "coup as follows: "Coup is a sudden take-over of a country's government by a group of conspirators. Usually, the conspirators are public officials who infiltrate and then use their country's armed forces, police, and communications to seize power. A coup may lead to few or many changes in the government. Famous coups in history include those carried out by Page 22 of 62 EFTA01181570  Napoleon Bonaparte in France in 1799, by the Bolsheviks in Russia in 1917, and by the Communists in Czechoslovakia in 1948. During the I900's, most coups have occurred in politically unstable countries in Africa, Asia, Latin America, and the Middle East. Coup is a French term meaning stroke ofstate." The Commission has found a more definite and useful technical definition of the expression coup by Hans Kelsen. This is at once a cerebral and practical definition. Professor Kelsen's definition was cited in Makenete v Lekhanva, International Law Reports Vol. 115 at page 27. The definition was also considered in Bhutto v The Chief of the Army and Federation of Pakistan PLD 1977 SC 657. According to Kelsen, a coup occurs: "whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not prescribed by the first order itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising against those individuals who so far have been the "legitimate" organs competent to create and amend the legal order. It is equally irrelevant whether the replacement is effected through a movement emanating from the mass of the people or through action from those in government positions. From a juristic point of view, the decisive criterion is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated." The contents of section 6 of the Offences Against the State Act, 1939 (U.S.A.) are also helpful: "Usurpation offunctions of government 6.—(1) Every person who usurps or unlawfully exercises any function of government, whether by setting up, maintaining, or taking part in any way in a body of persons purporting to be a government or a legislature but not authorised in that behalf by or under the Constitution, or by setting up, maintaining, or taking part in any way in a purported court or other tribunal not lawfully established, or by forming, maintaining, or Page 23 of 62 EFTA01181571  being a member ofan armedforce or a purporte