Tag: justice

Comment: Building a modern justice system that is right for the Maldives

As we see in the stories carried daily in this newspaper, Maldives is deep into the difficult business of building a strong and democratic society. There is often an understandable impatience about the time it takes to see the fruits of democracy, but when you compare to other countries that have had to do the same thing, you realise that the Maldives is trying to achieve in a few years what others have taken decades or centuries to do.

This is possible, but the key to success continues to be mobilising everybody around issues that are in the national interest. This is particularly true in the area of justice, which is the foundation of all democratic societies and the development of any nation. Developing a strong and independent justice system needs a concerted effort from all three branches of government, and civil society.

Change in the Maldives has brought its own anxieties, and society is particularly concerned about increasing levels of crime. This lends new impetus to the reform of the Criminal Justice System.

A reliable and operational criminal justice delivery system is needed to sustain democracy and the rule of law, strengthen new democratic institutions, and protect security, economic development and foreign investment, based on the firmest of foundations of justice and human rights. Establishing a robust criminal justice system is a very complex, long and difficult exercise, requiring work across many areas.

A vital step, however, is ensuring that the legislative foundation is put in place as soon as possible. Of priority, therefore, is enactment of criminal reform legislation, particularly the Penal Code, Criminal Procedure Code (CrPC), Evidence Bill, and the Juvenile Justice Bill.

A solid and modern Penal Code gives consistency to legal systems and makes criminal law more understandable and transparent to people. The Penal Code defines the general principles of criminal responsibility, classifying crimes and their penalties. If there is a proper Penal Code, it is much less necessary to draft legislation defining every crime or procedure. The Criminal Procedure Code will define procedures in criminal matters, which then provide transparency and accountability.

Another important piece of legislation is the Juvenile Justice Bill. Statistics on crime demonstrate that children under 18 and youth are involved in a lot of the cases of violent crimes. However, currently there are no strategic crime prevention programmes or rehabilitation programmes specifically targeting juvenile offenders.

In addition, there is no detention facility that caters for juvenile offenders, and there are no separate spaces for juvenile offenders to be incarcerated. In light of the emerging challenges and the increase in juvenile crime, the current law does not adequately cover rights of children or address the need for proper treatment of children in conflict with the law to rehabilitate them back in to society.

Until August 2008, Maldives’ criminal justice depended heavily on confessions. However with Constitutional reform, we are moving from a confession based to an evidence-based system, which is in line with international standards. It is therefore vital that we have an Evidence legislation that is in line with the new Constitutional reform and best practice.

Strong and functioning criminal justice systems certainly depend on a solid foundation of law, and effective courts, police, prosecutors, prisons and other institutions and actors. But it is equally important that public confidence in the system is high – to know that criminal conduct will be investigated and prosecuted in accordance with the rule of law, that the streets will be safe, that rehabilitation of offenders is possible, that human rights will be protected. Public confidence is served by knowledge and certainty. This demands the process of investigation and prosecution to be independent of political pressure, that it is transparent and follows a process that is fair and just.

We have already seen this year that pressure to ‘do something’ about crime, combined with a lack of the legal and institutional foundations discussed in this Opinion Editorial, can lead to a tendency to find reactive short-term solutions to complex problems, and even violate human rights.

The Maldives, instead, needs a proper criminal legislative framework as a matter of urgency. A real opportunity is now before the Majlis, supported by the justice system and the Government, to deliver a unanimous and thorough response to crime. It is possible to pass these key pieces of legislation in this session of the Majlis.

Technical support is available, if it is needed, from the UN and others, but above all, it is now a matter of political will to take this important step, in the national interest, to finalise and pass these key legislations. I urge MPs of all parties to pass these Bills as a matter of priority, resolve areas of disagreement constructively, and present the Bills to the Majlis for passage.

Andrew Cox is the Resident Coordinator of the United Nations System in the Maldives.

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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Investigation compromised as documents concerning Gaamaadhoo bones disappear

Crucial files relating to an investigation into human remains found on the site of the former Gaamaadhoo prison have gone missing, the President’s Office has claimed.

President Mohamed Nasheed announced on October 10 last year that DNA tests in Thailand had revealed that human bones discovered on the island a year before matched the age and estimated period of death of Abdulla Anees, Vaavu Keyodhoo Bashigasdhosuge, an inmate officially declared missing in the 1980s.

“The mysterious disappearance of Abdulla Anees is an important case in investigating the alleged torture, violation of human rights and killing of many inmates during the previous 30 year dictatorial regime,” the President’s Office said in a statement, announcing the appointment of new members to the Presidential Commission tasked with investigating allegations of police torture and mistreatment of prisoners in custody.

Amin Faisal, Dr Ahmed Ali Sawad and Mohamed Shafeeq were today tasked by the President with investigating the case of the missing files, “as this disappearance points to a deliberate attempt to hide evidence to obstruct an ongoing investigation.”

A senior source in the President’s Office told Minivan News that following the President’s announcement on October 10 last year, police had been asked to investigate the disappearance of Abdulla Anees in light of the discovery of the bones.

“People want to see justice for what happened,” the source said. “Human remains were discovered and there is a strong reason to believe that something bad happened. However it looks like the investigation has been compromised.”

Minivan News understands that the original file was stored at the Department of Penitentiary and Rehabilitation (DPRS), while copies were kept by police. Both sets of documents were reported missing.

Police Sub-Inspector Ahmed Shiyam told Minivan News that he had met with the unit investigating the case.

“Copies of necessary documents concerning other government authorities had been misplaced, but they have been but found now,” Shiyam said.

No further documents were missing from the police side, he added.

State Home Minister Ahmed Adhil told Minvan News that the two authorities had been searching for the files “for the last couple of days.”

“Police have informed the Home Ministry that they have located copies of the files, but the original was held by the DPRS and is still missing. We don’t count copies of papers so we don’t know whether any important documents are missing unless we find that original,” he said.

Adhil said the Ministry could not yet say whether the files had been misplaced or deliberately removed, although the theft of the documents “is a very close possibility.”

The Home Ministry had requested police investigate the matter, he said.

“We have to reform the DPRS; we’ve been saying that since this government came to power. There are a lot of weak areas in the DPRS and we have to do a lot of upgrading. These sorts of things have been happening for the last couple of years – this is the culture, and it’s time we faced it.”

Political background

President Nasheed announced the results of the DNA test last year at the launch of a book by elderly historian Ahmed Shafeeq, who contends that at least 111 people died in custody under the former government.

Nasheed said at the time that he was intimately familiar with Gaamadhoo prison, having spent three years there for dissident journalism in opposition to the rule of former President Maumoon Abdul Gayoom.

When he heard that the bones had been found, Nasheed said he had wondered if they belonged to Anees.

A former prison guard, Mohamed Naeem, of Gaaf Dhaal Hoadhendhoo Muraka, had told the police investigators that Anees had died in Gaamaadhoo prison.

Press Secretary for the President Mohamed Zuhair told Minivan News at the time that the Maldivian Democratic Party had voiced concern over the disappearance of inmates.

“There were allegations that some were killed in jail and buried,” said Zuhair.

“There were also allegations that some people were dropped in pits where they made lime for construction.”

Allegations of torture and deaths in custody remain a sensitive political subject in the Maldives, as the opposition has outright denied involvement or complicity in human rights abuses that occurred during the former administration.

Officials of both former and current governments have however spoken about a “culture of torture” they claim still persists in elements of the police and DPRS. Many senior members of the present government, including the President, allege abuse and torture at the hands of the former government.

When he took power in a peaceful transition that surprised many analysts, President Nasheed pledged that Gayoom would be allowed to remain in the Maldives and live in peace in dignity as a former statesman, so long as he remained outside active politics.

However that pledge has conflicted with considerable pressure from within his own party to prosecute the former President and those under his administration for a host of human rights abuses, and allegations of corruption. Frustration over perceived inaction led several senior MDP officials to form a ‘Torture Victims Association’, claiming they would seek redress against the former President in international courts.

Gayoom has shown particular sensitivity to such allegations, going as far as prosecuting local media for defamation for publishing official audit reports suggesting, at the very least, misappropriation of state funds.

Following Nasheed’s statement at the launch of Shafeeq’s book, Gayoom wrote a letter to British Prime Minister David Cameron claiming that Nasheed was waging a compaign of intimidation and harassment against himself and his family.

“In a book authored by this Shafeeq, which was ceremoniously released [on October 10] by Mohamed Nasheed himself, it is accused that I also ordered the man’s arrest and supposed torture in prison. In a country of just over 300,000, it is safe to assume that even one ‘missing person’ would not go unnoticed, let alone 111,” Gayoom told the British PM.

“All such allegations of corruption, mismanagement and misappropriation of funds and property are basedless and completely untrue, as are those of torture, repression, and unlawful detention during my presidency.

“Nearly two years after the MDP government assumed presidency, Nasheed and his government have failed to uncover a single shred of evidence to substantiate any of these allegations,” Gayoom added.

Shortly afterwards, Gayoom declared that he was returning to the Maldives to help the Dhivehi Rayyithunge Party (DRP), of which he remains the ‘Honorary Leader’, campaign in the local council elections.

The MDP voiced its dismay, aware of Gayoom’s continued popularity in many of the islands, prompting Nasheed to controversially warn Gayoom to stay out of the Maldives “for his own safety”, in reference to the death of former presidents who were killed after their resignations.

After the local Council elections Gayoom spearheaded a split in the opposition, disowning DRP leader Ahmed Thasmeen Ali whom he had previously endorsed as his successor.

A not uncommon outcome

Political and social turmoil rooted in the dichotomy between revenge and reconciliation is not unique to the Maldives.

Peter Godwin, author of The Fear: The Last Days of Robert Mugabe who visited the Maldives during the Hay Festival last year, observed that a country’s inability to confront or reconcile with its turbulent past led old wounds to fester.

Transitional justice was a vast subject falling between the two clashing camps of ‘revenge’ and ‘reconciliation’, and mired in shades of grey.

“You can listen to each argument and be convinced by both,” said Godwin. “I think it is one of those things where you have to look at each case separately. But the thing that never works is not doing anything about it; moving on and pretending it hasn’t happened.

“Because that is one of the things that has gone wrong in Zimbabwe. It has festered. You can feel the people seething. And the weird thing is that the children of the people killed and tortured are even more taken up with the cause than the parents. It doesn’t fade away – it magnifies with the passing of generations.”

The decision, he said, should lie with the victims and their families, he suggested.

“It’s very counterintuitive. The victims, who were put in jail and tortured – are the main victims who suffered during the authoritarian rule of a repressive regime. These people have the inherent right to decide what to do.

“You would imagine that these people would be the most radical, but a curious thing happens. In my experience – and I’m not alone, my view is shared by a lot of NGOs – the main thing that people who have been through the firing line want is acknowledgement.

“Not an ‘eye-for-an-eye’, just acknowledgement. The further you get away from the actual victims, the more radical you get. The people who didn’t risk their own lives in opposition – they don’t have the authenticity of victimhood.

What countries grappling with the enormity of such problems must do “is ventilate”, he suggests.

“You have to bring it into the mainstream. You have to bring it into public debate. You have to basically talk it through. It’s odd that the solution turns out to be the ventilation of it, as it becomes acknowledged in the media and public discourse, and ultimately in the way people write their own history.”

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‘Did you know’ campaign aims to educate public on legal system

A UNDP-run campaign called ‘Access to Justice’ hopes to address a lack of public awareness into how the judicial system works – a critical problem for the development and promotion of human rights in the Maldives, according to the UN body.

The ‘Did you Know?’ campaign will be unrolled across Male’, Hulhumale’ and Vilingilli following a launch event at the Surf Point in Male’ on November 26, and will involve a team of young volunteers door-knocking around the capital and distributing brochures.

During the launch event, stalls will be set up for various institutions, such as parliament, the Attorney General’s Office, Prosecutor General’s Office, Employment Tribunal and independent commissions.

UNDP National Project Manager Naaz Aminath said the purpose of the campaign was to raise people’s awareness of the Maldives legal system and their rights under Chapter 2 of the Constitution.

“The awareness-raising campaign is a year long campaign that will be carried out across Maldives,” she explained, “and we don’t expect people to know everything in one year – this is just the beginning.”

The door-to-door campaign will involve knocking on every door in the capital, and eventually the country, to deliver a pamphlet in English and Dhivehi outlining the legal system, rights and institutions protecting them.

“When we go to houses, if people are willing The idea is to provide people with detailed information if they are willing when we go to the houses. Otherwise we will simply deliver the pamphlet and leave,” she said.

Acknowledging the dry subject matter, Naaz explained that the event would be accompanied by a lucky prize-draw, entertainment and a six-month SMS campaign to spark public interest in the topic.

Naaz noted that the campaign was necessary because although the Maldives was not a post-conflict country, “since independence 45 years ago it has never had a democracy or even separation of power.

“You cannot expect the public or even the government for that matter to know what democracy means or looks like,” she added.

A report by the International Commission of Jurists (ICJ) into the state of the Maldives judicial system has been drafted but not yet officially released.

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Criminal Court stops accepting new cases, Civil Court returns to normal

The Criminal Court has told the Prosecutor General not to send any new cases to the court until further notice as it is busy implementing administrative changes required by the Judicature Act.

The Civil Court, which had suspended “all matters of justice” for seven days from Sunday to make administrative changes necessitated by the Judicature Act, will be returning to normal tomorrow, Chief Judge Ali Sameer told Minivan News.

“Four days” in which justice was suspended so the court can focus on administrative jobs, Chief Judge Sameer said, was “not bad”.

Chief Judge Sameer denied that President Nasheed’s ratification of the Act on Thursday 21 October had taken the court by surprise. Rather, he said, the Court was unsure as to whether President Nasheed would ratify the Act or not.

“Had he not ratified the Act as passed by the Majlis, pre-emptive action on our part would have meant that we would have made changes that were unnecessary, and also incurred a huge amount of expenses unnecessarily”, he said.

The Judicature Act was enacted to bring the nation’s judiciary in line with the standards set by  the 2008 Constitution to establish an independent judiciary replacing the administrative system of justice that was in place prior to the passing of the Constitution.

It creates the country’s courts, establishes their system of hierarchy and forms regulations according to which they should function.

The Act, which the President ratified within the specified 15-day period, changed the name of the Madhanee Court to Civil Court and the name of the Jinaaee Court to Criminal Court. ‘Madhanee’ means ‘civil’ in Arabic and ‘jinaaee’ means ‘criminal’.

Changes in the Act also affect the operation of courts in various islands. Attempts by Minivan News to contact the Chief Judicial Administrator Ibrahim Adam Manik to clarify the full range of administrative changes that has necessitated the interruptions to justice proved unsuccessful.

When Minivan News was able to get Manik on the phone after a two hour period in which his secretary repeatedly said he was “on his break” he requested that the question be sent to him by email.

Manik ignored the email when it was sent as requested.

The Criminal Court announcement states the difficulties have arisen because “relevant authorities of the judiciary have not taken the required decisions” on the procedures to be followed in the cases that are now brought to the court.

Nor have the said authorities taken a decision on how island courts should be addressed when the Criminal Court is sending out summons or messages to people involved in the cases being brought to the court.

The Court does not specify a date when it will resume accepting cases from the Prosecutor General. It says, however, “even though the Court is encountering administrative difficulties in implementing the many changes required by the new Act”, it will resume normal business “as soon as the work is completed”

Mohamed Nasheed, Independent MP for Kulhudhuffushi, who was a member of the Parliamentary Committee in charge of the Bill said the courts should have been in a position to meet the changes required by the Judicature Act head on.

The Bill had been in the Parliament since the beginning of the year, and the Parliamentary Committee had worked closely with the Courts during the re-drafting stages, asking for their opinion, comments and feedback all along the way, Nasheed said.

“The Judicature Act does not bring about a change so fundamental or so radical that the process of dispensing justice has to be interrupted. There should have been a smooth transition in which the courts seamlessly integrated the changes as the Act was ratified,” Nasheed said.

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Family Court seeks marriage registrars – women need not apply

The Family Court is looking for twenty marriage registrars. The conditions are that they be graduate followers of Sunni Islam, in possession of a sound mind, lacking a criminal record and, male.

Article 142 of the Constitution states that judges should consider Islamic Shari’ah when deciding on matters on which the Constitution or the law is silent.

On the issue of discrimination, the Constitution is clear. Article 17 prohibits discrimination against anyone on the basis of their gender while Article 20 states that ‘every individual is equal before and under the law’.

Hassan Saeed, Chief Judge of the Family Court, and his deputy, Hassan Shafeeu were both unavailable for comment throughout the day.

Deputy Minister of Islamic Affairs Ahmed Shaheem, an expert on Shar’iah, told Minivan that he would need more time to study the issue before commenting.

Shaheem also stated that he was unaware of a woman having been appointed as a registrar of Muslim marriages in any Islamic country.

The first Muslim female marriage registrar (maazouna) in the Islamic world was appointed in Egypt in October 2008, where the Constitution also enshrines the equality of men and women.

The then 34-year-old Master’s graduate in law, Amal Suleiman Afifi, was the first female marriage registrar in the Middle East, and as suggested by Egyptian press at the time, possibly the first in the Islamic world.

Despite the qualifications of Afifi, whose educational background was far superior to all other applicants, her appointment as a registrar was a contentious issue.

After a long legal battle and a religious edict (fatwa) from Egypt’s Grand Mufti Ali Gomaa, one of the world’s most recognised Islamic scholars, the issue was finally resolved in Afifi’s favour.

Gomaa’s fatwa declared there are no restrictions in Islam on women to act as marriage registrars.

Speaking to Egyptian newspaper, Al-Ahram Weekly, Gomaa said that in Islam a marriage registrar is a mere administrator, whose role was developed by the state to manage records and guarantee the legitimate rights of the parties concerned.

The maazoun, as he explained, has nothing to do with the pillars of the Islamic marriage. Therefore a woman’s signature on the contract does not violate Sharia.

Most of the objections to the appointment of a woman to the job of a marriage registrar were centred around the fact that in Islam, not one woman but two are required for the role of one witness.

Grand Mufti Gomaa’s ruling was that in executing the role of a marriage registrar, Afifi should not be considered a witness, but rather an official. As such, her signature on the contract does not in any way contravene the rules of Islam.

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Court refuses whistleblower’s evidence in JSC professional negligence case

The Civil Court has refused to hear additional evidence offered by a member of the Judicial Service Commission (JSC) who alleges that the JSC is withholding information in the ongoing professional negligence case against it.

The Civil Court decision was based on the grounds that any information obtained by a member of the JSC in their official capacity cannot be used for any other purpose than that of executing their official duties.

JSC member Aishath Velezinee applied for leave to enter the proceedings as a third party, saying that the JSC had not made full disclosure in its submissions to the court on the professional negligence case brought against it by Treasure Island Limited earlier this month.

“Aishath Velezinee applied to enter the proceedings in her capacity as a member of the JSC and the additional information she has offered was also obtained as a member of the JSC”, Judge Nihayath said.

Referring to the JSC Code of Conduct, Judge Nihayath said, this meant Velezinee could not share the additional information with the court.

To do so would be to breach the JSC code of conduct, Judge Nihayath said, as it would mean that Velezinee was revealing the information for a purpose other than the execution of her official duties.

In reply, Velezinee said that by sharing the information with the court she would be executing her responsibilities to the nation and to the State. The duty of the JSC, she said, is to serve the people.

Judge Nihayath granted Velezinee the right to appeal, were she dissatisfied with the ruling.

Treasure Island Limited is suing the JSC for failing to execute its responsibilities by neglecting to investigate three complaints it made to the JSC in 2009, alleging professional misconduct by two judges – Judge Ali Naseer and former Interim Supreme Court Justice Mujthaz Fahmy.

At the time Treasure Island made the complaints to the JSC, Justice Fahmy was the Commission’s deputy chair. He later went on to become its Commissioner before being replaced by Judge Adam Mohamed Abdulla in early September this year.

The cases in which Treasure Island alleges misconduct by the judges involve some prominent figures of the tourism industry, including the Ministry of Tourism, and a sum of money amounting to over a million US dollars.

The JSC denied the allegations of professional negligence at the first hearing on 7 October 2010, saying that the complaints made by Treasure Island Limited against the two judges were outside of its constitutional mandate.

The JSC is an independent institution with the Constitutional mandate to oversee the judiciary, investigate complaints against it, and taking disciplinary action if required.

The JSC also told Judge Nihayath at the hearing that it had the power, granted by the Constitution, to ignore any complaints that it deemed were neither valid nor genuine. The complaints made by Treasure Island Limited fell into this category, it said.

The JSC has not investigated any of the 118 complaints submitted to it this year, and the commission’s complaints committee has not met for five months.

Treasure Island refused the offer of an out of court settlement by the JSC at the hearing, saying it would prefer the court itself to make a decision on the matter.

The hearing is now scheduled for 26 October next.

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Comment: Sharia punishments would be a sin given the current state of the judiciary

It is natural to want the Huddud (Laws of Qur’an and Sunnah) applied when one is experiencing so much death and tragedy as is happening in the Maldives.

But before the death penalty can be applied, the legal system must be absolutely objective. Unless there is a strong faith in the ability of the justice system, unless there is widespread faith that there are no incompetent judges or possibilities of bribery or subjectivity in the decision making procedure, it is a sin to implement Shariah Law which is a huge Amanah (trust) and MUST NOT BE TOYED WITH!

Before Maldives can implement Shariah, it MUST first establish widespread trust in the judiciary by through serious reform measures.

“O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.” [An-Nisa 4:35]

The law as we know it is believed by many to be a shocking betrayal of the Quran’s Amr (command) to ensure absolute objectivity. Adhaalath and Al-Qisas (social justice and equity for all) are a MUST before Hadd can be applied!

What if your children were put to death for a crime that was made up? False charges occur very frequently.

What if the drug dealers and corrupt ones who control court rooms in much of the world killed your son or daughter on charges of “terror” or manufactured charges of murder, zina or anything – but all your children really did was try to prevent the drug dealers from harming people? And were killed for that based on false charges made up that they committed zina?

As the Ummah is as one body, and one feels the pain of every other, I cannot but help fend for the potential victims of injustice under a system which sees the rich and powerful use the legal system to exterminate their enemies unjustly.

Think about all those who stood up against tyrants in world history, and imagine if they had of been killed by the State in the name of Islam even though they were fighting for True Islam which is Peace and Justice.

Real peace cannot exist in the absence of justice – how many crimes were manufactured against the activists of history?

It seems that in the system we have, to be a Muslim, which implies standing up for the downtrodden, sick and oppressed, is to sacrifice yourself. This is because truth suffers in this unjust world, but that suffering must be embraced for others if one is to be a person of true leadership, as a leader is called to be ‘a shield for others’ (in Sahih Muslim, Book of Government.)

In many societies, the real criminals walk away from the courts – and in fact control the courts, and that does not look like it can be changed!

So, the killers and the drug dealers will be killing the innocent and oppressed in the name of implementing Islamic Law. Does that sound like Islam to you? That is serious Fitnah (dissension) from Islam…

The Hukm (Law) is deeply sacred, it is a massive Amanah (trust) which must never be taken lightly or under estimated.

Allah is Al Quddus, the Holy, and every injustice is made right in the Qiyamat. Read the Hadith about what is in store in Jahannum for Muslim leaders who missapply the Shariah Law for political ends, or for the wrong Niyat.

A judge is to be held accountable for his motives, and it is a massive Zalim (darkness – injustice) to missapply the Shariah Law.

I do advise anyone wishing to implement the Law to be aware not to play politics with the Sacred Law.

On many occasions, the Prophet (SAW) did not implement the death penalty (Rajm) for certain Hadd level crimes although others frantically pushed for it to be implemented. This was because absolute objectivity could not always be guarenteed in the decision-making procedure.

For example, in the Hadiths of Bukhari and Muslim, as narrated through Sahih Isnad (a reliable chain of narration) we read about some Muslims killing other Muslims because they were ‘not Muslim…’

They said Shahada only at the edge of the sword, it was claimed. In response to the claim that their Shahada was not genuine, the Prophet (SAW) said, “Did you cut their hearts open to see the Niyat (the quality of intention) of their hearts?’

The point being, if there is any chance that there could be a mistake, then only Allah (SWT) can judge in the Qiyamath, the judgement which is in the Akhira – the afterlife. Unless absolute objectivity can be guaranteed, the Prophet did not implement or advise Hadd.

On other occasions, according to Sahih Isnad in Bukhari and Muslim, it was obvious that a child was not the child of the father who thought they were the father. For Malsahah (social utility) the Prophet (SAW) said the child belongs to whom’s bed on which it was born. It was not beneficial to prescribe Hadd though it was technically due.

The Merciful essence of Islam and the Islamic intent of social harmony, social justice, would be betrayed by Hadd in such circumstances although Hadd was technically due.

A Qadi must be a qualified Mujtahid and must investigate the issue extensively before making a decision. Notice the word Mujtahid, notice how this word for study and decision making about the Law requires Jihad – striving or struggle – as is contained in the word. If a Judge exhausts all avenues of possible doubt, only then will he be rewarded for decision making, and those doubts include ones own heart’s doubts!

Justice and truth must exist in the heart of the people before it can be applied to the courts and the system.

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: We are criminals

The Maldives has the 10th highest prison population rate in the world and our society is set up to perpetuate this rate.

The victory in 2008 ushering in democracy has barely lessened the number of people incarcerated. It has not changed how we treat people who have gone to jail, nor the causes for which so many of our people lose their freedom. It has not made us reflect on the effect this is having on our society. And as a nation we will suffer for this together.

Culture promoting criminality

Before we won the election, politicians on my side of the divide could have claimed that many of the prisoners in jail were the result of political repression.

But the problem goes beyond politics. The problem is societal and the responsibility now falls on each and every one of us to change the direction we’ve been heading in.

The vast majority of those arrested have been sentenced on drug related charges. We have 30% of our youth falling into drugs like heroin, and we are surprised that crime is soaring. We are surprised when gang related violence escalates, and we are surprised that Male’ and islands around the country are no longer safe.

Male’ is now split up by the gangs controlling strictly monitored lines. They hijack each other’s cars and motorcycles and go after one another with whatever weapon they can get their hands on.

For all of us who have nothing to do with these gangs, we just ignore it. We turn a blind eye because that’s what we’ve been taught to do for 30 years.

But political commentary aside, we each let this happen. We live in a small community where everyone knows everything about everyone else. We know when our neighbor is arrested. We know why the boy down the street was taken to jail and why the police kicked down his friend’s door the week before.

But instead of helping them recover and reintegrate, we shun them. We ostracize them and say they are not worth our time. Instead of offering a helping hand, we kick them to the curb as the wasted undesirable elements of our society. But with the prison population so high, it is a large part of our society.

Our prison population rate is the 10th largest in the world, and this is without all the people who have not yet been sentenced. We need to help these people join the working ranks and support our nation to grow. We need to stop abusing them with our indifference, and we have to make it clear to our government institutions and those who work for them, that we will not tolerate abuse against inmates and promote true rehabilitation instead.

Rehabilitation

We as a society have to help with rehabilitation. I don’t mean drug rehabilitation. I mean we have to teach inmates how to function in society and how to be productive members of it. But the truth is that rehabilitation was never a part of our penitentiary services. In the past, the entire prison institution was based around repression, fear, and control of the unruly elements of our society. The new government is trying to change that and I’ve seen more change in the DPRS (Department of Penitentiary and Rehabilitation Services) than in many of the other institutions, though even the DPRS has been subject to politically based manipulation by jailers, and not just by government sympathizers. However, what about all those people who have not yet been convicted?

These people are kept in police detention facilities. The same kind of facilities which have been responsible for custodial abuse reported recently. In addition to the kinds of abuse described by the inmates on DhiTV, there is a culture of brutality amongst the armed forces which needs to be addressed. Prisoners are constantly manhandled by their guards, whether they behave or not.

Further methods are used to ensure compliance and deal with unruly behavior. Amongst these methods are handcuffing inmates in difficult positions and leaving them for hours at a time under the hot sun, or if it is raining, leaving them out in the cold.

These are people who have not even been sentenced yet! Guilt has not been established. Due process has not been executed. And even if these people had been sentenced, they are still human beings and thereby extended inalienable rights; especially from torture. We suffered these kinds of abuses under the previous administration; it cannot be allowed to continue.

Reform

The attitudes within both the Police Service as well as the general populous need to be reformed. The Maldivian Police Service has made phenomenal improvement in how the deal with the citizenry, so there should be no reason why this cannot extend towards those members of society who are placed in their care.

We as society need to care about what happens to inmates. Without reform and true rehabilitation, we will never be able to progress as a nation.

We may have had a democratic election, but we still do not have a free society. The democracy monitoring international NGO, Freedom House, still ranks us as only partly free because of our apathy towards the prison population. We are such a small community.

We are all brothers, sisters, cousins, neighbors, and friends. We have no excuse to allow things to continue as they are. The shackles of tyranny still bind us. It’s time we start chipping away at these bindings, so that one day we will enjoy a free and stable society.

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