Comment: Special laws must not pre-empt general criminal law

On 6 July 2015, a new anti-terrorism bill was submitted to the People’s Majlis that aims to replace the existing Anti-Terrorism Act 1990. Drafted by the Attorney General’s office, the bill was submitted by the President’s Office and is yet to come up for discussion in the parliament.

According to media reports, the bill defines offences and actions that constitute an act of terrorism and bestows additional investigative powers to state authorities. If passed, the bill will expand the legal framework to deal with terrorism.

This gives rise to several concerns. First, any new anti-terrorism law must abide by the 2008 Constitution. At present, Maldives is working to finalize its Penal Code, Evidence Act and Criminal Procedure Code to revise basic criminal law to align with the 2008 Constitution. Special laws are based on an assumption that a distinct legal framework, beyond general criminal procedures and standards, is needed. There is no basis as yet for this assumption in the Maldives. Laws like on anti-terror are legitimised under the pretext that “special circumstances require special procedures” but are often an excuse to let the inefficiencies of the state continue at the expense of civil liberties. Across the world, they have been used to reduce the rigor required by the standards of fair trial and have made it easier to put away dissidents and other people inconvenient to the ruling regime of the day. Once a specialized security regime is put in place, it is very difficult to rollback powers vested with the authorities as well as mitigate impact on civil liberties.

The government must, therefore, clearly articulate reasons behind introducing this bill. What is the level of terrorism threat in the country? What are the factors including socio-economic causes leading to its purported spread, and why is general criminal law (as being finalized) considered ill-equipped to address the threat? These concerns must be addressed now if Maldives is to avoid a legal regime where exceptionalism prevails over constitutional principles and accepted legal standards of criminal justice as embodied in general laws.

Moreover, the definition of terrorism provided in the bill, as indicated through media reports, is likely to be misused particularly in the absence of a penal code. The definition, for instance, includes activities carried out with the intent of promoting ‘unlawful’ political ideologies among others but what constitutes unlawful is not defined anywhere. This leaves space for subjective interpretation. Who gets to define an ideology or what is unlawful, or at what stage an ideology becomes unlawful?

Such drafting appears designed to curtail rights of Maldivians to freely associate and to establish and participate in the activities of political parties guaranteed under Article 30 of the Constitution. It also has the potential of being used arbitrarily to target and suppress political opposition, particularly when seen in light of additional powers of surveillance vested with the authorities. Even if left unused the very presence of such laws lying on the books creates a chill that shrivels the democratic impulse.

These concerns are amplified in light of the continued attempt to restrict constitutional rights through legislative action. Under the bill, those suspected of terrorism can have their right to remain silent and access to lawyers restricted. In November 2014, the Majlis amended the Law Prohibiting Threatening and Possession of Dangerous Weapons and Sharp Objects which restricts the same rights for arrested persons in case of violent assault. These rights are fundamental features of a fair trial and need to be protected for proper administration of justice.

Given the serious ramifications of the bill, a process of public engagement on the subject matter is crucial. The government must use this as an opportunity to galvanize a national debate on whether an anti-terror law is needed at all in the Maldives, and if so, how best to ground it within the framework of democratic freedoms, human rights and international norms. Parliamentary committee review, which is likely to follow once the bill is accepted at the floor of parliament, is important but not sufficient.

The government is urged to make the bill public at this stage, invite public comments and hold wide-range consultations, as is now the accepted practice in several democracies. The benefits of such an engagement are manifold, from building public confidence, creating a more informed citizenry to generating a sense of ownership among the public. It is also imperative that legal experts are involved to ensure that any new legislation is necessary and if so, that it is drafted in strict accordance with the 2008 Constitution.

Ultimately, unless the government makes sincere efforts to inform and involve the public before laws are enacted, restrictions being proposed through such laws are likely to lead to unrest and deep dissatisfaction among the public. The process of democratisation which began in 2008 is ill-served by processes which take no account of public opinion when drafting legislation; it is time this gap is addressed and this seems a good moment to make a new beginning.

Devyani Srivastava is a Senior Program Officer (South Asia) at the Commonwealth Human Rights Initiative. She can be reached at [email protected].

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Comment: Need to involve the public in Police Planning Process

Devyani Srivastava is a programme officer, focusing on police reforms and access to justice within the Commonwealth Human Rights Initiative (CHRI) – an international, non-government organisation working towards greater transparency and accountability in the criminal justice sector.

Active in the Maldives since 2008, the CHRI seeks to realise increased demand for democratic policing through technical assistance in drafting police-related laws and policies, regularly publishing reports, intervening in court when necessary, and conducting trainings of police personnel across ranks.

The Maldives Police Service (MPS) recently launched its five-year Strategic Plan for 2014-2018. The document, available on the police website, lays down the police service’s key goals and priorities in how it seeks to police crime and the country over the next five years.

The MPS is a pioneer in South Asia in strategic planning, a process that enables police organisations to shape a vision for policing, identify precise goals and targets against the vision, and put in place a system to evaluate implementation and performance against the set goals. Most strategic planning frameworks centre on the drafting of a Strategic Plan which serves as a roadmap outlining policing goals and targets within a given time period, usually three to five years. This is the approach adopted by the MPS.

MPS’s current plan is its third in a short span of ten years since its separation from the military in 2004. This shows the leadership recognises the importance of strategic planning in bolstering police service delivery, organisational efficiency and police accountability. The process itself has improved since the first plan came out in 2007. From reading like a vision document with a wish-list of projects, the plans have become more targeted and contextual.

The process has also become more consultative. The current plan was formulated following a 3-day workshop involving 85 staff including department heads, managerial staff, and executive staff officers deliberating over crime trends and strategic priorities. In a further improvement, the department recently put out an evaluation of its performance in 2012 against targets laid down in the previous Strategic Plan 2011-2013 (also available on their website), and promises to prepare annual business plans and performance reviews for the current plan.

While these are steps in the right direction, much more needs to be done to make the planning process more inclusive, open and transparent. The most significant missing link in the planning process is consultation of the public.  This must be integrated into future planning as a matter of priority.

Decentralise further

First, the planning process should be decentralised further within the organisation. So far, the exercise involves seeking inputs from department heads, managerial staff, and divisional commanders. Junior ranks and staff at the police stations are not involved in any meaningful way, when they are the ones who have a daily interface with local communities, are the first point of contact in case of any trouble, and are directly answerable to the people when something goes wrong.

Their input regarding levels of crimes, difficulties on the ground, and allocation of resources needs to be taken into account if police response to crime is to improve, especially given that police stations in Maldives oversee a number of islands, each scattered from the other. Planning must start at the police station level and feed into action plans at the divisional level, which then filter into the national-level plan.

Just as the MPS assess itself as an organisation on the basis of its strategic plan, the performance of divisional units should be evaluated based on their action plans. This way, both planning and performance evaluation are decentralized and ultimately closer to ground realities.

Bring in public consultation

Second, the process needs to become more open and transparent. Unlike in other jurisdictions where public input and suggestions are actively sought in police planning, the Maldives Police is yet to involve the public in formulating its goals and targets. Information is made available in the public domain only after the Plans are finalised and launched in the media and uploaded on the police website.

A study by my organisation, the Commonwealth Human Rights Initiative, on the implementation of the first Strategic Plan 2007-2011, showed how even other relevant stakeholders including the Police Integrity Commission and civil society organisations were involved only at a later stage when the plan had already been drafted. The public at large was not involved at all. A clear disconnect was visible during our research between the police and other stakeholders over how projects had been prioritised and how crime had been categorised.

The absence of public consultation is a serious limitation of the process. Ultimately, it is the public which is affected by crime and relies on the police for more safety – they must have a say in the police’s planning for better policing and safety. Reaching out to people, especially those living in far flung islands and atolls with varying crime patterns, will improve overall quality of policy-making by identifying practical problems and unintended effects.

Relying solely on police officers’ feedback serving in the islands excludes public feedback, especially of vulnerable communities, which is critical to improving policing. Communities will also become more informed of the kinds of arrangements and measures being put in place to address their issues and understand better how they themselves can contribute to the success of these measures.

A range of methods such as discussion forums held regularly at the local level; public perception surveys to gauge public confidence in the police; user satisfaction surveys to understand problems in service delivery and identify solutions; focused group discussions for example with the youth, elderly citizens, and women to understand needs and expectations of different segments of society; and social media may be employed to understand community expectations and problems.

It is not easy to carry out inclusive and extensive public consultation. It takes time, organisation, manpower, and intellectual resources. It requires regular and constant flow of information between the police and the public, another reason why local units such as police stations need to be involved more closely. Police must provide accessible feedback on the results of consultation, decisions that have been made and suggestions that were rejected so people consider it a meaningful exercise. But making the investments in this kind of planning process is the best way to build public trust and also get to better policing.

Finally, implementing these steps in a systematic manner, and not leaving it to the discretion of individual officers, is crucial to their success. In fact, many countries (UK, Northern Ireland, Canada) have codified strategic planning into their police laws, thereby making it a statutory requirement, and have developed elaborate rules to guide the process including methods of engagement with the community. Maldives Police must move in this direction in order to enable accountable and responsive policing take roots in the island country and give meaning to the promise of rule of law enshrined in its constitution.


Comment: Need for a domestic legislation on peaceful assembly

Police-public clashes have once again occupied centre stage in the Maldives. Over 100 people are believed to have been arrested in the ‘direct action’ protests organised by the opposition Maldivian Democratic Party (MDP) since 8 July. Several reports of police brutality and excesses have once again come to the fore.

The police authorities allege that the ongoing protests are not peaceful gatherings as many demonstrators attacked policemen and carried out other criminal offences too. MDP meanwhile maintains that the protests themselves are “largely peaceful” and that the police are carrying out discriminatory attacks against its MPs, journalists and harassing and intimidating the protestors.

Whether the police exercised their discretion to use force appropriately and in due consideration with the constitutionally-guaranteed right to assemble needs to be seen against the existing laws and procedures regarding peaceful assembly in the country.

The freedom to assemble peacefully has been guaranteed as a fundamental right under Article 32 of the 2008 national constitution. Notably, the right has been guaranteed to all and does not require prior permission of the stat

e. However, this is in contradiction to the domestic “regulations on assembly” which were drafted in April 2006, and later ratified under the General Regulations Act 2008. The regulations required three organisers of public assemblies to submit a written form 14 days prior to the gathering to the Maldives police. Only in April 2012 did the High Court struck down this requirement (among others) as being unconstitutional. The Court also struck down the police authority to deny permission, upholding thereby the principle that the police role is simply to facilitate peaceful assembly.

Despite the frequency of public protests particularly since the democratic transition of the country in October 2008, it is surprising that the government has so far not amended the regulations in tune with the constitutional safeguards. The continuing discrepancy between the two suggests that police powers during public protests remain ambiguous, and that the constitutional safeguards against restriction of the right (Article 32) as well as protection of right to life (Article 21) and prohibition of torture (Article 54) are unlikely to be reflected in their behaviour.

Against this, the police are free to use their discretion on the amount of force necessary in such situations. Their discretion has been found to be excessive in the past.

For instance, the Human Rights Commission of the Maldives’s (HRCM) investigation into the police action in controlling the MDP protests on 8 February 2012 was found to be excessive and unnecessary. The HRCM noted that the level of threat posed by the protestors was disproportionate to the force used under Article 14 of the Police Act according to which police may use amount of force necessary to ensure compliance of its lawful orders. It was also noted that the police did not follow properly the protocol as laid down in Regulation on Use of Force and Firearms. Against the requirement, protestors were not given sufficient warning before force and weapons were used to disperse the crowd.

All this suggests an urgent need for domestic legislation on peaceful assemblies, one that can strike a balance between protecting individual rights and ensuring public safety. Such a legislation must provide a clear definition of the term peaceful assembly, the kinds of public gatherings that are covered under peaceful assembly, procedure for conducting/organising a peaceful assembly, rights and duties of organizers of such public events, rights and duties of participants of a public assembly, duties of the police including bases on which the police might disrupt or terminate a public assembly and liability in case of any violations of the law.

Such a legislation should be governed by three key principles, as enunciated in the OSCE Guidelines on Freedom of Peaceful Assembly and endorsed by the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Maina Kiai in his report (21 May 2012), considered as best practice vis-à-vis regulation of public assembly – presumption in favour of holding assemblies, state’s duty to protect peaceful assemblies, and proportionality.

Together, these impose a positive duty on the state to put in place adequate mechanisms and procedures to ensure that this freedom is enjoyed in practice. This means that any restrictions placed in the interest of public safety must not impair the essence of the right. In this regard, best practice is considered to be one that discourages seeking prior authorisation for holding a gathering, and one that avoids blanket time and location prohibitions, for instance.

This also entails a duty on the state to train law enforcement officials appropriately in policing public assembly with an emphasis on protection of human rights. The Special Rapporteur notes that the pretext of public security cannot be invoked to violate the right to life, and that any resort to physical means must be rational and proportional. Crucially, it is the responsibility of the national authorities to support any claim of proportionality by relevant facts and not merely suspicion or presumptions.

Lastly, an important best practice emerging in the field of public assembly is allowing human rights defenders to monitor public assemblies. For instance, the London Metropolitan Police invited Liberty, an independent human rights organisation, to act as independent observers while policing a Trades Union Congress march in London in 2010. Such monitoring may itself deter human rights violations, and crucially, make it easier to establish facts amidst allegations and counter-allegations, as is currently underway in the Maldives. This further places an obligation on the state to undertake capacity building activities for the benefit of NGOs and human rights defenders to monitor assemblies.

The right to freedom of assembly is an essential component of democracy that facilitates political mobilization and participation. States have an obligation towards creating an environment conducive for the exercise and enjoyment of this right. A domestic legislation incorporating clear definitions and best standards is the first step towards fulfilling that obligation, and an urgent need in the Maldives frequently disrupted by public protests.

Devyani Srivastava is a Consultant for the Police Reforms Programme (South Asia) of the Commonwealth Human Rights Initiative

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]