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].

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]

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Comment: Will the new anti-terror bill deter Maldivian ‘Jihadists’?

This op-ed is by Mohamed Hameed, the former head of the police intelligence department.

The first reports of Maldivians joining in and dying in the civil war in Syria came in during mid-2014. Since then, more than a hundred Maldivians, including women and children, are reported to have left the Maldives to fight in battle in the ongoing war in Syria and Iraq, and to live under the banner of the Islamic State. Dozens more have reportedly died. The latest are three young men from Malé’s Kuda Henveiru ward.

The Maldives needs legal measures to prevent the death and the steady outflow of Maldivians, but will the provisions in the new anti-terror bill, drafted by the Attorney General’s Office and submitted to parliament on July 6, act as a deterrent?

The bill metes out a jail term of between 17- 20 years for those who join in a foreign war or leave the Maldives with the intent of joining a foreign war. A jail term of 10 to 15 years is proposed for those who attempt to leave the Maldives with the same intent.

According to media reports, at least two groups of seven Maldivians have been caught in Sri Lanka and in Malaysia while attempting to board flights to Turkey. Under the new law, they may be jailed for up to 20 years.

Harsh penalties can act as a deterrent. But they are not enough.

The Maldives has tough laws on gang violence and knife crime. But the harsh penalties have done little to curb the fatal stabbings. In 2010, in response to a surge in murders of young men, the parliament passed a law banning threats and possession of dangerous weapons. The law metes out a jail term between six months and seven years for threats and up to three years in jail for possession of weapons. However, 12 people were killed in the ensuing two years.

In early 2014, President Abdulla Yameen’s administration removed a six-decade moratorium on the death penalty. In August of the same year, after three young men were stabbed to death in the space of a month, the parliament moved to restrict the right to remain silent and access to a lawyer for suspects. Since the amendments passed in December last year, six people have been killed, including three migrant workers.

Robust laws are never enough.

There have been multiple instances where law enforcement, especially investigative agencies have failed in dealing with cases of serious crime. This has affected public safety, and lead to questions over the force’s competence in protecting the public. The police service is perceived to operate without clear policies and strategies to tackle crime in the Maldives.

The model which the police service uses in order to achieve policing objectives is not known to the public or its officers. Counter-terrorism policing is a more complex subject where success relies heavily on how well regular police work is carried out in partnership with the communities the police service serves.

The criminalization of participation in foreign wars or attempting to do so is a minor aspect of the new anti-terrorism bill. The bill is mainly concerned with defining some 14 other offences as terrorism, including murder, disappearances, kidnappings, damaging property, hijacking vehicles, endangering public health or security, damaging public infrastructure and suspending public services. Punishments range from 20-25 years prison terms for perpetrators, and from 17-20 years for those caught planning a terror act.

Is the Maldives at threat from the above? Since the Sultan Park bomb incident of 2007, how many incidents of terror has the Maldives seen?

These questions are very important as the anti-terrorism bill curtails a host of civil liberties. The home minister is authorized to seek a monitoring and control or monicon order from the High Court to conduct surveillance of suspects, including tagging, restricting place of residence, restricting freedom of movement, intercepting communication and monitoring bank accounts. A monicon order can be issued without the knowledge of the suspect. The home minister only needs to provide the judge with a police intelligence report.

The monicon measures introduced in this bill appears to be modeled on the United Kingdom’s Terrorism Prevention and Investigation Measures (TPIMs) Act, passed in 2011. The law was passed in response to increasing risks of terrorism. The July 7 bombing of 2005 killed 52 and injured more than 700. Further, a significant majority of the UK’s migrant population are from Pakistan, a country considered the “epicenter of terrorism.” Do we face the same threats to justify the granting extensive powers to the law enforcement agencies and the curtailing of civil liberties?

It is also important to note that the prevention and investigative measures outlined in the UK Act is for those suspects who cannot be either prosecuted or deported by the UK authorities. In the case of this bill, monicon measures can be taken against suspects who are prosecuted and under trial, but cannot be held in custody.

While a monicon order can be sought on police intelligence information, it is important to note that there is no special law on the gathering and use of intelligence information. In the absence of such a legal or regulatory framework, there will always be questions over the credibility of such information. The provision of using intelligence in the anti-terrorism bill underscores the immediate importance of a framework on compiling intelligence reports. This framework must be agreed on by the law enforcement agencies, the prosecution authority and judiciary. Investigative agencies must be aware that intelligence information does not always count as evidence. Instead, it is good investigative practices that lead to successful convictions. A heavy dependence and high degree of admissibility for intelligence reports, as provided for in this bill, could lead to ineffective investigations.

It is true that a single act of terror can cripple the Maldives and its economy. The 1990 Anti-Terrorism Act is outdated and insufficient in dealing with the nature of modern crime. But is the proposed bill compatible with the risks Maldivians face?

The Maldivian government is yet to acknowledge how wide spread extremist ideologies are in the country. After months of pretending to have no knowledge of the number of Maldivians leaving for Syria, the home minister in December last year told the parliament there were some 7 Maldivians fighting abroad. The next month, the commissioner of police said the number was more than 50. Media reports since then indicate Maldivians are continuing to leave the country. The police have now begun questioning passengers on board flights to Turkey, even as reports indicated Maldivians were now seeking alternative routes to fly to Syria.

The risk of terrorism must not be underestimated. It is likely that there are some Maldivians with the motivation, the intent and the capabilities of carrying out acts of terror. But the most prevalent threats in the Maldives at present appear to be the recruitment of Maldivians for wars abroad and the spread of extremist ideologies. Although the bill does punish the dissemination of materials published by terrorist organizations, this is not enough to counter radical and extremist ideologies that give rise to terrorism and allow recruitment.

Comprehensive reforms and measures such as public awareness, early intervention and rehabilitation programmes to combat extremism must be put in place, along with or before the passage of this bill. There has to be a comprehensive picture on the problem of religious extremism and a cross-government strategy to tackle it. As a very first step, the government must publicly acknowledge the spread of extremist religious ideologies. Our elected officials must explain to the us the level and nature of threats we are facing and justify why we must allow the state to take away so many of our civil liberties.

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 editorial[email protected]

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