Tag: Hussain Shameem

Penal code delayed amid opposition MPs’ protest

Parliament has approved a three-month delay for the implementation of the new penal code amid vociferous protests by opposition MPs on the People’s Majlis floor.

The new penal code was ratified a year ago and was due to come into force tomorrow, but the ruling Progressive Party of Madives (PPM) claims more time is needed to raise awareness among the public.

However, both the attorney general and prosecutor general have said there is no reason to delay enforcement. The government has trained some 1,100 individuals including state prosecutors, police officers, customs staff, lawyers and journalists on the new law.

Critics say the existing penal code adopted in 1966 is outdated, draconian and not in line with international human rights conventions the Maldives is signatory to.

The main opposition Maldivian Democratic Party (MDP) contends that the postponement is a “politically motivated attempt to continue using the current penal code as a means to harass and intimidate the opposition.”

Hundreds of protesters face harsher punishment for ‘disobedience to order,’ a charge MDP argues the government uses to suppress rights to expression and assembly.

While similar offences are included in the new penal code, the punishment for protesters who do not have a criminal record would have been less severe as judges are required to take mitigating factors into consideration under sentencing procedures.

Show of hands

The government-sponsored amendment bill to the penal code was passed with 43 votes in favour and one against at an extraordinary sitting of parliament held today.

Prior to voting, MDP MPs took over the speaker’s chair and the secretariat desk and protested with megaphones and sirens, leaving Speaker Abdulla Maseeh Mohamed unable to use the electronic voting system and forcing secretariat staff to vacate their chairs.

In a scuffle between pro-government and opposition MPs, PPM MP Ahmed Assad grabbed and smashed one of the megaphones.

Pro-government MPs meanwhile surrounded Speaker Maseeh as he used a megaphone to ask for a show of hands. The secretary-general walked around the chamber and took the count.

Adhaalath Party MP Anara Naeem voted against the legislation.

MDP MPs have said the voting took place in violation of parliamentary rules as there was disorder in the chamber.

“During this time of increased political opposition to the [Abdulla] Yameen government, the MDP condemns the government’s use of their political majority to cripple the criminal justice system and restrict the rights of all Maldivians,” the party said in a statement.

However, majority leader Ahmed Nihan said former Speaker Abdulla Shahid had called a vote under similar circumstances in 2011, which can be considered a precedent under the standing orders.

Human rights NGO Maldivian Democracy Network has called on President Yameen not to ratify the amendments as the current law “is widely understood as draconian and unreflective of the democratisation process that was introduced to the Maldives through the constitution ratified in August 2008.”

Preparations

Speaking at a symposium about the new penal code yesterday, Attorney General Mohamed Anil said the country should bid farewell to the existing law “without any fear” as it was unsuited to the present day.

Former Prosecutor General Hussain Shameem told Minivan News today that 98 percent of police investigators have been provided extensive training as part of preparations for implementing the penal code.

Shameem has been involved in the training as a senior legal consultant at the Legal Sector Resource Centre established by the attorney general’s office with assistance from the UNDP to train and sensitise stakeholders.

A phone application for the penal code was launched yesterday and 12 information papers were published on the penal code website, he added.

Shameem noted that the website features an ‘ask us’ interactive function, marking the first time questions can be posed to experts regarding a Maldivian law.

“So the government is ready. The public are ready as all this information has been provided through the media as well. The documents and phone application are available. We have never been more prepared for a law than this,” he said.

Majority leader Nihan meanwhile told reporters that the PPM parliamentary group did not consult the attorney general’s office before today’s vote.

Nihan said ruling party MPs did not believe the public was adequately prepared, adding that the state broadcaster should show educational television programmes.

Revisions based on issues raised by religious NGOs can also be incorporated during the next three months, he said.

NGO Salaf said today that the new penal code is contrary to the principles of Islamic Sharia.

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Comment: The old and new penal code

The following op-ed was written by former Deputy Prosecutor General Hussain Shameem and first appeared on newspaper Haveeru on April 1. Translated and republished with permission. 

The penal code currently in force in the Maldives was passed in 1966. It has been almost 50 years since the law was enacted. In recent years, the economic and social condition of the Maldives has undergone major changes, but the appropriate changes were not made to the law.

We need to amend old laws to include new offences. For instance, credit card fraud was not something that was envisioned when the penal code was drafted. Credit card fraud is now prosecuted under fraud. However, as the act of having a credit card was not foreseen it is difficult to prove the offence.

The other problem with the current penal code is the effect historical realities had on its provisions, and the challenges to ensuring justice due to these effects.

The penal code was passed following a trip by then-Prime Minister Ibrahim Nasir to quell a secessionist movement in the south. Therefore, severe punishments were specified for crimes such as treason and attempts to assassinate the head of state. But not much attention was given to other offences. For instance, premeditated murder was not criminalised in clear language in the law.

The task of rewriting the penal code was first announced at a function at the Islamic Centre on June 9, 2004 by then-President Maumoon Abdul Gayoom. In his speech, he said the Maldives needed a penal code in accordance with Islamic Sharia and international conventions the country has acceded to.

The ‘National Criminal Justice Action Plan’ formulated later also detailed this policy. It stated that the new penal code should be a law that could be enforced in accordance with Islamic Sharia and international conventions. This is a special effort that has not been undertaken so far in the whole Islamic community.

The United Nations Development Programme (UNDP) offered expert assistance to the government in this task, and enlisted a distinguished professor at the University of Pennsylvania Faculty of Law, Paul H Robinson.

Professor Robinson is a world-class expert on drafting laws, a draftsman who has earned the honour of drafting the penal codes of various American states. Due to his know-how in drafting the law, the most voluminous law passed in Maldivian history is easy to read and refer.

Changes the penal code will bring about

The penal code due to come into force on April 13 will usher in major reforms to the Maldivian criminal justice system.

One of the biggest changes will be bringing together provisions in some 90 laws that specify criminal offences under one law. This will make the work of investigators, prosecutors, and judges significantly easier. Instead of referring to different books and laws, they will be able to look up all offences in one place. All criminal offences under the law can be found in one statute.

This rule is also stated in article 61 of the constitution. The article states that no person may be subjected to any punishment except pursuant to a statute or pursuant to a regulation made under authority of a statute, which has been made available to the public. The criminal offence and its punishment must also be clearly specified.

Article 88(a) of the current penal code states that disobedience to a judicial or legal order is a crime. However, the article does not make it clear how and to what extent an action becomes a crime. This article could be seen as in conflict with the constitution. This very argument has been made as well.

The second change that will come about is the ability to prosecute on multiple counts for different offences involved in a single incident. At present, a person who enters a home illegally, steals, and leaves after breaking down the door can be prosecuted only for theft. That is because theft is the most serious crime involved in that incident.

Under the new law, each offence can be prosecuted separately. Therefore, the offender can be charged with illegal entry (article 230), theft (article 211), and damaging property (article 220). If the charge of theft could not be proven for any reason, the offender could still be punished if the other offences are proven. This example also applies to violent assault and premeditated murder.

Once the new penal code is in effect, the punishment for all offences will generally be less severe. However, once offenders could be charged on multiple counts and sentenced for several offences, the punishment for each offence will be largely the same as now.

Additionally, the penal code specifies offences for which the punishment would be harsh or less severe. Chapter 1001 of the law states that the punishment could vary based on consideration of how the offence was committed.

For example, if the victim of an assault is below 18 or above 65 years of age, the punishment will be severe. Moreover, the punishment will be severe if the offender has a criminal record. If the offender does not have a criminal record, the punishment could be lenient.

I will provide more information about the characteristics of the new penal code in future writings.

Hussain Shameem is a senior legal consultant at the Legal Sector Resource Centre established jointly by the UNDP and the Attorney General’s Office.

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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Thirty percent of cases rejected by Criminal Court in past three months

The Prosecutor General’s Office has revealed that the Criminal Court has rejected 120 out of 383 cases submitted over the past three months.

At a press conference held on today (April 3), Deputy Prosecutor General (PG) Hussain Shameem stated that the total number of cases rejected and returned by the Criminal Court had now reached 435.

The Criminal Court had previously refused to accept new cases from the PG’s office, citing the Majis’s failure to approve a new candidate within the constitutionally stated period after or Ahmed Muiz’s November 2013 resignation.

The backlog of cases pending at the PG’s Office reached 533 as a result of the Criminal Court’s stance, before the court resumed acceptance of cases after a Supreme Court intervention.

Shameem stated today that the Criminal Court has still returned 120 cases since that time.

After the Criminal Court introduced new regulations governing the procedures for submitting cases in February, it subsequently rejected 60 cases forwarded from the PG’s Office, prompting Shameem to accuse the court of usurping powers reserved by the Supreme Court.

Shameem today revealed that one of the justifications given by the court when returning cases is that the accused is not originally from the capital city Malé where the court is located, claiming that hence the jurisdiction therefore falls to the relevant island magistrate court.

Shameem claimed that the Criminal Court can indeed preside over these cases as the crimes were committed in Malé and also because referring the cases to island magistrate courts would five rise to further administrative complications.

“The objective of the law is also to provide services conveniently. This is why the law is in such a way that allows superior courts to preside over all types of cases,” said Shameem.

“However, things are currently not proceeding in a way that fulfills the objective of this law,” Shameem claimed.

He further added that the PG’s Office has again appealed to the Supreme Court to assist in finding a solution to the matter.

According to Shameem, another reason the courts have used in returning cases is the state’s failure to appoint interpreters in cases where there are foreign witnesses.

Shameem explained today that the law states the provision of interpreters to fall under the mandate of the court presiding over the particular case in question.

After disputes with court staff over unpaid overtime, local media reported the court had been forced to curtail working hours due to budgetary restraints.

The deputy PG stated that police had sent 829 cases in the past three months to his office after completion of investigation.

He further revealed that the office had sent 932 cases to various courts in the past three months, adding that 356 other cases were currently prepared to be forwarded to a court after the prosecution’s work has been completed.

According to Shameem, the cases recently submitted include 383 cases forwarded to the Criminal Court, 210 cases submitted to the Drug Court, 22 cases submitted to the Juvenile Court, and 317 cases submitted to various magistrate courts around the country.

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Criminal Court stops accepting cases from PG’s Office

The Criminal Court has today decided not to accept any cases submitted by the Prosecutor General’s Office and to halt all existing cases because the position of Prosecutor General (PG) has been vacant for over 30 days, the PG’s Office has confirmed.

On November 25, former PG Ahmed Muiz submitted his resignation, shortly before parliament was set to debate a no-confidence motion against him.

Speaking to Minivan News today Deputy Prosecutor General Hussein Shameem said that as soon as he receives the court’s decision he will appeal it at the High Court.

Shameem stated that the laws do not say that the Deputy PG cannot take over the responsibilities of the PG in a case where a new PG is not appointed within 30 days.

He also said that it was for the parliament to appoint a new PG, noting that the Criminal Court had not discussed the issue with the parliament before making the decision.

Shameem expressed concern that there were people held in pretrial detention who are to be kept there until their trial was concluded.

“So what do they do now, it would not be fair to keep them in there until the parliament comes back to work from recess after three months and appoint a new PG,’’ Shameem said.

“That is one of my biggest concerns over this issue, it is a responsibility of the PG office to uphold constitutional rights of the people.’’

He said the court had not approached the PG’s Office before making this decision.

“And also, this morning the court made the decision but today afternoon we received a chit from the court stating that two cases have been scheduled for tomorrow,’’ he said, adding that “maybe the two cases are concerning someone close to them.’’

Furthermore, Shameem said that there were no laws stating that the Deputy PG cannot fulfill the responsibilities of PG in the case of the position being vacant. He argued that the work of PG’s Office should not come to a halt because the parliament had failed to appoint a new PG.

He also said that the court had informed the PG that it will continue the extension of detention trials for those under arrest.

On December 10, President Abdulla Yameen proposed his nephew Maumoon Hameed for the post of Prosecutor General and submitted the name to the parliament for the MPs to approve.

The issue was sent to parliament’s Independent Commissions Committee and the committee decided to seek public opinion on him before sending it to the parliament floor for voting.

However, the parliament is now on recess and will not re-commence work until March.

Criminal Court Spokesperson Ahmed Mohamed Manik did not respond to Minivan News at time of press.

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Deputy Prosecutor General resigns

Deputy Prosecutor General Dheebanaaz Fahmy resigned from her post today, being replaced with Hussain Shameem, local media has reported.

Sun Online stated that Dheebanaaz refused to disclose the reasons for her dismissal, though she was reported to have described having worked with Prosecutor General Ahmed Muizz as a privilege.

Muizz is currently facing a no-confidence motion in the Majlis after the Maldivian Democratic Party accused him of of “selectively” pursuing cases against its members while ignoring “human rights abuses” committed by police in the wake of the controversial transfer of presidential power on February 7, 2012.

Muizz has suggested that he would tender his resignation before allowing the Majlis to vote on the motion.

Muizz’s new deputy, Shameem, previously held the position until late last year before taking time to study abroad.

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