Comment: A case for more mature defamation laws in the Maldives

“Reputation, reputation, reputation! O! I have lost my reputation. I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!” said Cassio in Act II of Shakespeare’s Othello.

So did Maumoon Abdul Gayoom almost every day whenever before 2008 whenever his government wanted to stymie any criticism from anyone that he didn’t count as a supporter.

So did Maumoon Abdul Gayoom in June 2010, when the New York Times published the now (in)famous “looters” article and when Miadhu decided to reprint it.

So did Mohamed Nasheed in January 2012, when DQP’s Dr Mohamed Jameel alleged Nasheed was working under the influence of “Jews and Christian priests”.

These three moments/phases define the journey of defamation laws in our country and reflect three aspects of the maturity and adequacy of these laws. They reflect “the good, the bad and the ugly” of defamation laws in the Maldives and underlie the case for further refinements in these laws for us to have a stable, progressive and a coherent Islamic society.

Evolution of defamation laws in our country has come a long way from the times where it was a criminal offence punishable with up to six months of jail under Gayoom’s era. However, they seemed to have been too weak and toothless under Nasheed, and this in some sense led to his downfall that ushered in a volatile political environment for the last one and a half years.

The purpose of laws is to not just to punish actions that are undesirable for the peace of society but to also deter actions that can potentially harm such peace and harmony. This is especially true of defamation laws, which must create the fine balance between promoting responsible freedom of expression and providing enough deterrents against slander that can do unreasonable harm to reputation of individuals and to the cohesion of societies.

It is worthwhile to look back at how the defamation laws have evolved over time in the Maldives and reflect on whether we need to revisit these laws going forward, in order to make them more effective in serving the purpose that these laws are supposed to serve.

Before defamation was decriminalised in November 2009, defamation was one of the most abused laws in the Maldives. Section 125 was invoked by Gayoom administration every now and then to put their opponents under arrest and stymie any criticism of the government. Section 125 stated that “Where a person makes a fabricated statement or repeats a statement whose basis cannot be proven, he shall be punished with house detention for a period between one to six months or fined between Rf25 and Rf200”.

This of course reflected “the ugly” of our defamation laws and was dropped by the newly elected democratic government of Mohamed Nasheed. Such decriminalisation was hailed as a key democratic reform of the previous government and was appreciated by global rights watch bodies such as Article 19 and Freedom House as well as the United Nations itself. This was a significant movement for a society that was used to being under the shackles of the government and was enjoying its now-found ‘democratic society’ status.

Then, in June 2010, Gayoom decided to take Miadhu to court for reprinting an article published in New York Times. This article, which spoke of how money from the exchequer was inappropriately used for personal consumption under Gayoom’s regime, was based on the Nasheed government’s audit reports of Gayoom regime’s expenditure. This defamation suit was to be a watershed moment in democratic evolution of the country where a newspaper carried a story, which they believed to be credible, fearlessly. This was also a landmark moment with respect to freedom of expression and media in the Maldives; it was also the first case that Gayoom had lost in 32 years in the country! It showed Maldives to be on the right path of socio-judicial democratic reforms where some of the key tenets of globally accepted defamation regulations were shown to be working in our system.

However, this was soon followed by how ‘the bad’ of our defamation laws were exposed after ex-DQP leader and now-running-mate of Abdulla Yameen, Dr Mohammed Jameel Ahmed decided to slander against the then-President Mohamed Nasheed. In a closely knit Islamic society such as ours, an accusation of working against the nation’s religion, which is what binds us together, is a matter of supreme importance – more so, if such an accusation is made against the nation’s President.

If backed by proof, then it is a matter of strategic importance for the nation’s institutions to investigate but if it is unsubstantiated, it is slander of the most deplorable nature and must be handled with utmost urgency. In this case, it was interesting to note that while Dr Jameel made these allegations, they came from the political leader of a party whose other major leader, Dr Hassan Saeed, had declared during many election rallies in 2008 that as Gayoom’s Attorney General, he was aware that Nasheed was investigated for his association with western churches.

He had declared during these rallies that Nasheed had come totally clean after detailed investigations. Moreover, Nasheed’s government was accused of voting in favour of Israel at the United Nations, whereas Maldives’ voting in any UN resolution is public knowledge and clearly this accusation was untrue as well. However, despite these issues being common knowledge, a political leader could believe that he could make the most serious and slanderous allegations against the President of the nation and could expect to be let off the hook easily for such slander.

It’s another matter that there are a number of structural issues with respect to the judiciary in the Maldives which also played their part in how this case snowballed into significant political turmoil for the country. While I do not intend to comment on or discuss the issue of judicial reforms through this article, the core issue that I want to highlight is that even the laws must have had loopholes for which a political leader such as Dr Jameel had hoped to get away with slander. I say this because, had the laws been specific and if they had enough teeth to be deterrents by themselves, scope of judicial manipulation would have been limited in this case. For instance, while slander and libel were decriminalised in 2009, the maximum penalty for civil action against slander was set at MVR 5000 (US$325). That’s hardly a deterrent for a man who is known for his panache for Hugo Boss suits! He may as well have deposited MVR 5,000 in the President’s office in advance for every time he got a set of these ‘slanderous’ booklets printed!

This saga that set off arguably the biggest political turmoil in Maldivian history was not the end of it, as for the woes against weak defamation laws. Foreign investors like Nexbis and GMR complained of continuous undermining of their business reputation through unsubstantiated and irresponsible corruption allegations by local politicians such as Sheikh Imran and Hassan Saeed. For instance, in the case of GMR, while the likes of Sheikh Imran and various ministers in Dr Waheed’s cabinet made corruption allegations against the GMR deal, the Anti-Corruption Commission later gave a clean chit to the deal.

The impact that these experiences, with respect to the safety of investment climate and investor protection against local political interests, of these two foreign companies will have on future investment flows only remains to be seen in the times to come. What is very clear is that re-looking at defamation laws is not only important from a socio-political perspective but from an economic development and foreign investor protection perspective as well.

In essence, we have come a long way from pre-2009 days when criminal defamation was widely abused but are now at a place where anyone can make any sort of irresponsible allegations without worrying about the consequences. This is not only limited to the domain of politics but to our economy as well as everyday life. It is clear that defamation cannot go back to being a criminal offence but it is also important for us to consider if the current civil defamation laws reflect the desired balance that is important to maintain order in our society.

Clearly, the current laws are unable to make this balance and need to be strengthened – how, though, is a matter of broader socio-politico-legal debate.

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