Tag: New penal code

Maldives celebrates historic penal code

A new penal code came into effect today, repealing a law written in 1968. Government offices, the opposition and influential figures have welcomed the law as a momentous change that will usher in major reforms to the Maldives’ criminal justice system.

The landmark law is hailed as one that is compatible with both the Islamic Shari’ah and international human rights standards. The penal code comes into effect nearly ten years after it was first drafted and despite recent efforts by the judiciary to overhaul it.

Attorney General Mohamed Anil today said the new law would bring the Maldives criminal justice system on to equal footing with that of other developed nations. Thanking all stakeholders involved in its enactment, Anil said the penal code is the most well-researched law to come into effect in the Maldives.

Law enforcement officers and public prosecutors have now been trained in its application with the help of a legal resource center set up by the UNDP, he said.

“The Attorney General asks all government institutions and the Prosecutor General to complete all the tasks in order to fully comply with the new penal code,” he said in a statement today.

Anil also called on Majlis to expedite the criminal procedures bill and stressed the need for laws on evidence and legal aid to complete reforms to the criminal justice system.

The main opposition Maldivian Democratic Party (MDP) said: “We believe the enforcement of the new penal code is a progressive step for a better criminal justice system. It brings to an end to the injustice wrought by the old law.”

Foreign minister Dunya Maumoon said: “I am extremely proud that with this significant move, the Maldives becomes the first Islamic country to bring into place a penal system that is in line with the principles enshrined in both Islamic Shariah and the common law.”

Ahmed Faiz, the former chief said: “Never will a more significant change happen to the Maldivian criminal justice system. “

The PG office and the police have said that they are fully prepared to implement the new penal code.

“The PG office was actively involved in training of lawyers, the police and other institutions for the penal code. We are well prepared,” a spokesperson said.

According to the police, some 3100 officers have been informed on the provisions in the law.

Amidst all the celebration, former Attorney General Husnu Suood was more cautious. “The people will benefit from the penal code provided that judges are god fearing, selfless, loyal and uphold the most sincere ethics,” he said.

The first draft of the penal code was prepared in 2006 at the request of then-Attorney General Hassan Saeed by Professor Paul H. Robinson, a legal expert at the University of Pennsylvania.

However, the legislation was stalled at the 16th People’s Majlis. It was resubmitted to the 17th Majlis in late 2009 where it remained with a committee until December 2013. In the first vote, the bill was rejected 36-34 and sent back to a committee.

It was finally passed in April last year, but its enforcement was delayed by a year to provide state institutions time to prepare. Ruling party MPs this year delayed the penal code’s enforcement by a further three months, claiming more time was needed to raise public awareness.

The decision was made against the wishes of the Attorney General and the Prosecutor General.

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Comment: New penal code comes into effect! A truly historic moment

This article is by Hussein Shameem, a partner at Aequitas Legal Consultants and the former deputy Prosecutor General. 

Today is July 16, 2015, a momentous day in the history of the Maldives’ criminal justice system. The penal code of 1968 expired at 11:59pm on July 15. In this historic moment, 12am on July 16, 2015, a brand new penal code takes effect in the Maldives.

The revolutionary change we are ushering in today is significant even by global standards, and equivalent to the historic change brought by the ratification of a new constitution in the Maldives on August 7, 2008. The constitution, in addition to granting many fundamental rights, also brought in major reforms to the criminal justice system. These reforms can only be complete with the enforcement of the new penal code.

Article 61 (b) of the constitution states: “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 and which defines the criminal offence and the punishment for commission of the offence.”

The statute that defines criminal offences and the punishment for the commission of those offences is the penal code that took effect today. This law states, in clear and simple language and not in legal jargon, what criminal offences are and what their corresponding punishments are.

This penal code will improve transparency in the law enforcement sector. It clearly lays out what law enforcement officers can and cannot do, and provides measures that judges must refer to in meting out punishment. It allows an offender to argue several justifications in their defense, such as self- defense, defense of property or that of law enforcement authorities.

This is the age of transparency and access to information. Laws must clearly state how people are to be treated. This is a crucial element of the philosophy of the rule of law. If an individual knows beforehand how they will be treated under the law, it will increase their trust in the legal system. Public trust is one element lacking in and much needed for the Maldives criminal justice system. This penal code paves a path to gain that trust.

This penal code only applies to events that occur after 12:01am on July 16, 2015. Hence, the old law will be used in the prosecution of events that occurred before the new law came into force. This is because the public must be notified before a certain action is declared as a new offence. If an act is not an offence at the time at which it was committed, the person who committed the act cannot be prosecuted retroactively by a new law. This is not justice. Since this law came into force today, and since the notice was provided today, this law only applies to events that occur today onwards.

What will happen to cases under investigation at present?

Some crimes are reported to the police only days after they took place. Since the current penal code only applies to events that occur from today onwards, the police must consider the date on which the reported offence took place. Depending on the date of the alleged offence, the law they apply will be different. Hence, law enforcement agencies will have to consider both laws for a time being. But this will be resolved soon, when police start receiving reports of events that occur from today onwards.

This overlap is inevitable. If the enforcement of a criminal law is suspended for any period of time, it may permit criminality for that period. The police and law enforcement agencies will have to bear some difficulties in this period of transition, for our protection and safety.

What will happen to cases sent for prosecution to the Prosecutor General’s Office?

The Prosecutor General (PG) must press charges according to the law in force at the time that an offence was committed. Even if the punishment for the offence is considerably lesser in the new law, the charges must be filed under provisions in the law in effect at the time the act was committed.

Judges, however, must consider the more lenient punishment in sentencing. I will address that in the next section

What will happen to ongoing cases at the criminal court?

With the enforcement of the new penal code, prosecution in ongoing cases will continue according to the offence the person was charged with under the old law.

However, the accused has the following rights:

Firstly, the defendant will have the right to the justifications outlined in chapter 40, 50 and 60 of the current penal code. For example, if the offence was committed in self-defense, the defendant can take this argument up in the trial. Chapter 40 introduces six defenses, chapter 50 introduces seven, and chapter 60 introduces six. These chapters detail how these justifications can be used. The defendant will now have the right to argue the justification relevant to their circumstances.

Secondly, Article 59 (a) of the constitution states that if the punishment for an offence has been reduced between the time of commission and the time of sentencing, the accused is entitled to the benefit of the lesser punishment. Hence, judges are obligated to consider the punishments outlined in the old and new laws and mete out the lesser punishment. If not, the accused has the right to appeal the sentence at the High Court. Unlike before, the accused can appeal either the reasoning or the severity of the sentence at the High Court. If judges find that the accused was handed the severe sentence, they can reduce the sentence to the lesser punishment.

What will happen to completed cases?

If a case had been tried and a verdict had been delivered before the new law came into force, there will be no change to the sentence.

Exempted Acts

Even though the new penal code takes effect today, Article 18 states that the following acts shall take precedence (meaning provisions in the following Acts will take precedence over that in the penal code):

  • Act 12/2009: Special Provisions Act to Deal with Child Sex Abuse Offenders
  • Act 17/2010: Intimidation and Possession of Dangerous Weapons and Sharp Instruments
  • Act 17/2011: Narcotic Drugs Act
  • Act 12/2013: Anti-Human Trafficking Law
  • Act 13/2013: Anti-Torture Act
  • Act 10/2014: Money Laundering and Terrorism Financing Act
  • Act 17/2014: Sexual Offences Act

Even though provisions in the above-mentioned laws will take precedence over the penal code, for prosecution under those laws, the defendant will get the benefit of defenses. If the defendant is able to prove such a defense, they may not be punished. For example, if a defendant is able to prove they were mentally incapacitated at the time of committing the offence, they may not be sentenced.

The offences mentioned in these laws, and the procedures relating to those offences must be reviewed by the Majlis and a decision on the annulment of these Acts must be made before July 15, 2016.

Because of all the reasons outlined above, the enforcement of the new penal code is truly a historic event. It opens doors for the Maldivian criminal justice system to become a globally accepted system.

Human beings wrote the penal code. Therefore, it is likely to have some flaws. They will become clearer as we begin to enforce the new law. These flaws can be corrected and the law can be improved further. In all countries, it takes some time to reform and improve laws. Our task now is to identify such gaps and block them. The Attorney General’s Office has set up a mechanism to do so—the Legal Resource Center (LRC). This center will consult with all stakeholders, conduct research and bring the necessary reforms to this law.

The legal system is not just dependent on good laws, but also on their enforcement. If we are unable to implement and enforce the law, even the most perfect law will not bring resolutions. I call on the law enforcement agencies to be sincere in enforcing this law, even if there are some difficulties at first. When problems arise, we must resolve them. The real problem is when there is no interest in solving problems.

Shameem is a consultant with the Legal Resource Center. 

This is a translation of an article written in Dhivehi. Translation by Zaheena Rasheed. 

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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Majlis shutdown to ‘block changes to new penal code’

Sittings of the People’s Majlis were suspended this week to block MPs from submitting changes to the long awaited penal code, which is due to come into force at midnight tonight.

The Supreme Court has compiled a 150-page draft of a new bill to overhaul the modern penal code. Explaining the decision to suspend sittings, a senior ruling party MP said: “We will not allow the judiciary to dictate laws and overstep its mandate.”

Minivan News has obtained some excerpts of the judiciary proposed bill. The apex court wants to set the age of criminal responsibility to seven years and jail terms and hefty fines for defaming state employees.

The new penal code, passed by the Majlis in 2014, was due to come into force in April this year. But the ruling Progressive Party of the Maldives (PPM) delayed its enforcement until July 16, claiming more time is needed to raise public awareness.

Attorney General Mohamed Anil and Prosecutor General Muhthaz Muhsin had opposed the delay. Judges have been working on a draft since then, multiple sources have told Minivan News.

The new penal code is to replace a law adopted in 1968. It sets the age of criminal responsibility at 15 years. Offenders between 15-18 years will be prosecuted by the Juvenile Court, and will receive lighter sentences.

While the draft proposed by the apex court also sets lighter terms for children between 7-18 years, it gives judges the discretion to mete out full punishments provided in the Islamic Shariah.

The apex court also wants to introduce hard labor in jail as a punishment.

Defamation of a state employee by using the media is punishable by up to eight months in jail or a MVR15,000 fine. Providing misleading statements about court proceedings is punishable by up to three years in jail and a maximum fine of MVR30,000.

Reporters will have to bear criminal responsibility for translating or reproducing statements issued by international bodies that defame state employees, the draft said. Meanwhile, courts can also shut down media outlets if defamatory statements are published.

If an unmarried man has extramarital intercourse, he will be sentenced to a year under house arrest and 100 lashes. An unmarried woman who simply invites extramarital sex is sentenced to 100 lashes and a year under house arrest.

The apex court’s draft also criminalizes abortion, unless it is carried out to save the mother’s life or for a reason stated in another law. The new penal code legalizes abortion up to three months after conception, and makes exemptions for cases of rape even after the three-month cut off.

Terrorism is loosely defined as committing murders, kidnappings, hijacking of vessels, damaging diplomatic missions with the intent of undermining the constitution or influence government policy. Offenders can be sentenced to 10-15 years in jail.

Other offences in the draft include leaving goods on the street or placing chimneys or drainage systems in a manner that disturbs others. The offence is punishable with up to three months under house arrest and a fine.

Meanwhile, if the guardian of a mentally challenged person “sets them loose in a public area and they go on to disturb or cause harm,” the guardian will be punished with three months of house arrest and a fine of up to MVR2,000.

A source familiar with the apex court’s draft said it will undo ten years of work put into modernizing the Maldives’ criminal laws.

The existing penal code of 1968 has been criticized as draconian, outdated and not in line with the Maldives’ obligations under international human rights conventions.

With the new penal, the Maldives will become the first Islamic country to adopt a criminal law compatible with both the Islamic Shariah and international human rights standards.

The Maldivian judiciary has been widely criticized over politicization and the lack of academic qualification of sitting judges. The new penal code will regulate judge’s discretion in meting out punishments.

The landmark law brings together provisions in some 90 laws that specify criminal offences under one law.

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