Tag: 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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Only three judges trained on new penal code

A new penal code is due to come into force at midnight tonight, but the three judges of the Juvenile Court are the only judges who have been trained on the provisions in the new law, reliable sources have told Minivan News. 

The juvenile court has declined to comment on the matter, while the Department of Judicial Administration (DJA) said no judges have been trained on the new law.

Judges and lawyers told Minivan News in April that the Supreme Court has denied permission for judges and magistrates to attend trainings conducted by the attorney general’s office and the UNDP at a special legal sector resource center, which was set up last year to train law enforcement agencies, judges, lawyers and journalists on the new penal code.

“The penal code is a large, extensive document with criminal proceedings that is new to the Maldives. I wanted to attend but the Supreme Court wouldn’t give us permission,” a judge who wanted to remain anonymous told Minivan News at the time.

The existing penal code was adopted in 1968 and has been criticised as draconian, outdated and not in line with the democratic constitution of 2008.

Speaking at a symposium about the new penal code in April, 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. The Majlis however delayed the law’s enforcement by three months in the same month claiming more time was needed to raise awareness.

Former Prosecutor General Hussain Shameem says that some 1100 people people have been provided extensive training as part of preparations for implementing the penal code.

“We have never been more prepared for a law than this,” he said.

The Supreme Court has meanwhile drafted a penal code of its own, which proposes lowering the age of criminal responsibility to seven years and sets hefty fines and jail terms for defaming a state employee.

But the People’s Majlis has suspended its sittings to block MPs from submitting any changes. Explaining the decision to suspend sittings, a senior ruling party MP told Minivan News: “We will not allow the judiciary to dictate laws and overstep its mandate.”

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

In the draft, 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.

However, with the new penal code, 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.

Correction: Minivan News has removed a statement from this article that said the training of the juvenile court judges had taken place without the Supreme Court’s permission.

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Drastic changes planned for new penal code

The judiciary is planning to submit drastic changes this week to the new penal code due to come into force on July 16, Minivan News has learned.

A reliable source told Minivan News that the proposed changes are modelled on South Sudan’s penal code and will undo a decade’s work of modernising the Maldives’ criminal justice system.

“The new penal code is very modern, drafted over 10 years with the participation of several sectors. The planned changes will set us back by 50 years,” the source said.

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

The new penal code was hailed as a landmark law that would usher in major reforms to the Maldivian criminal justice system.

Legal experts have said that with the new law, the Maldives will become the first Islamic country to adopt a criminal law compatible with both Islamic Shariah and international human rights standards.

A second credible source told Minivan News that only five percent of the new penal code will remain with the new changes. The changes were based on the penal codes of countries such as Egypt, Libya, and Qatar.

The source said that the pro-government majority in parliament is planning to delay the enactment of the new penal code by a further 90 days before July 16.

The 1966 penal code will remain in place for three months and the new penal code will be annulled, the source said. Afterwards a new law will be passed with the changes proposed by the judiciary.

The changes were drafted by the judiciary in a process led by the Supreme Court, Minivan News understands.

“The Supreme Court or judges should not be involved in writing laws. This is exactly how laws must not be written,” another lawyer familiar with the matter said.

The Maldivian judiciary has been widely criticised over “politicisation” and the lack of academic qualification of sitting judges. The new penal code would have minimised the discretion of judges in meting out punishments.

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

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

The legislation was stalled at the 16th People’s Majlis with no progress. The bill was resubmitted in late 2009 after the election of the 17th Majlis, where it remained with a committee until December 2013.

In a first vote, the law was rejected 36-34 and returned to a parliamentary committee.

It finally passed in April 2014 with 48 votes in favour and a one-year period for preparation.

Although the law was due to come into force in April 2015, the parliament delayed its enactment by three months, claiming more time was needed to raise awareness among the public and address concerns of religious scholars.

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

The Supreme Court, however, barred judges and magistrates from attending training sessions.

Former deputy prosecutor general Hussain Shameem, who conducted training on the new penal code, said the legal resource centre set up by the attorney general and the UNDP had invited all judges and magistrates, but “none of them attended the trainings.”

Shameem says the legal resource centre could train all of the 186 judges and magistrates in the country within two weeks.

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Criminal court slammed over MVR200 fine for man who assaulted wife

The criminal court today fined a man MVR200 (US$13) for physically assaulting his wife and shoving her onto the deck of a fishing boat in January.

Luthfee Umar from Laamu Isdhoo was found guilty of assault based on his confession and the medico-legal record of his wife, which stated that her lips were torn.

Local media reported at the time that Luthfee was thrown into the sea near the fish market in Malé by angry bystanders and was not allowed to climb out until the police arrived at the scene.

The current penal code enacted in 1966 carries a penalty of either six months in prison, six months of house arrest, or a fine of MVR200 for assault.

However, the new penal code – due to come into force in July – has a penalty of a maximum of four years for assault depending on the severity of the case.

The new penal code was due to come into force in April, but the pro-government majority in parliament delayed its enforcement to July citing lack of public awareness and concerns of religious scholars.

Today’s sentence has sparked outrage on social media, with one user observing that the fine is smaller than that of a parking ticket.

The sentence was passed by criminal court chief judge Abdulla Mohamed, who has previously been accused of misogyny. In 2005, then-attorney general Hassan Saeed sent a letter to then-President Maumoon Abdul Gayoom outlining several allegations against the judge.

After completing the sentencing of a defendant in June 2005, Abdulla Mohamed allegedly said: “Very few men ever meet women who love them. You may meet a woman who loves and cares for you. You should not run after a woman who does not love you. It is also stated in Holy Quran that women are very deceptive.”

Speaking to Minivan News today, opposition Maldivian Democratic Party (MDP) MP Rozaina Adam said such sentences “encourage similar abuses instead of acting as a deterrent.”

“We get a hefty MVR750 (US$ 49) just as a parking violation fine. With this sentence, beating a woman means less than a parking ticket,” said Rozaina.

Rozaina said that under the Domestic Violence Act, the police have the responsibility to explain the rights of the victim, such as getting a protection order, which has to be issued immediately.

She also criticised the ruling party for its decision to delay the penal code: “Delaying the penal code was a huge obstruction to justice.”

“The current penal code is severely outdated. 200 rufiyaa was a big figure then. But now it is very little,” said Rozaina.

Photo from social media.

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Maldives defends death penalty and flogging

The Maldives has defended the death penalty for murder and flogging for fornication at a UN human rights review on Wednesday, stating the punishments are mandatory in Islamic law.

Several countries including France, the United Kingdom, Ukraine, Namibia, Spain, Australia and Montenegro expressed concern over Maldives’ decision to end a six-decade moratorium on the death penalty last year.

However, speaking to the UN human rights council in Geneva, legal affairs secretary Aishath Bisham said: “We would like to stress that Islamic principles dictate that its legal measures are to be enforced and regulated by law and process after necessarily subjecting it to rigorous judicial framework.”

The Maldives constitutional assembly had declared Islam to be the state religion and the basis of all laws enacted in the country, and requires judges to refer to Islamic law, she noted.

However, the enforcement of the death penalty and flogging are “never intended to be arbitrary or capricious,” she said.

The former UN high commissioner for human rights Navi Pillay and Amnesty International have called on the Maldives to abolish flogging, describing it as an inhumane and degrading treatment.

In 2012, the juvenile court’s decision to flog a 15-year-old rape victim sparked international outrage and led the high court to overturn the ruling.

Information previously made available by the Department of Judicial Administration showed that, while applicable to both men and women, flogging is largely discriminatory against women in practice.

But Bisham said the enforcement of flogging is never served “as a retributive penalty” and primarily serves as a deterrent.

“It is strictly regulated and enforced only when the appeal or its opportunity is exhausted and is executed with civility. The respective regulations disallow flogging on any woman found to be mentally incompetent, or if there is a potential risk to the person’s life, limb or even the function of his her senses.

“Flogging is never enforced on children and pregnant women. The practice itself is with minimal force, with absolutely no instances of nudity or exposure, in full recognition of the person’s right to dignity constitutionally prescribed in the Maldives,” she added.

The standard of proof required in proving an offence prescribed in Islamic law is “far stricter than the conventional threshold of beyond reasonable doubt.”

Flogging is enforced in the Maldives in only five out of a potential 425 offences, she said.

Meanwhile, the death penalty will be enforced in cases of wilful murder alone, and only if the accused confesses in a court of law and when all three tiers of the judiciary deem the accused guilty, she said.

If the accused denies the charges at any stage of prosecution, it will be legally impossible to issue the death sentence, she said.

The government will “urgently strengthen” the legislative and judicial framework in cases of flogging and death penalty and will continuously subject the process to periodic independent assessments, she added.

The Maldives also maintained reservations on the call for lesbian, gay, bisexual and transgender rights and freedom of religion.

“Provisions on the country’s Islamic identity are evident in every single draft of constitution ever adopted all throughout our constitutional history. The government emphasises proudly that Islam has been and will remain as the defining part of the nation, its culture, and its people,” she stressed.

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President ratifies law stripping Nasheed of MDP presidency

President Abdulla Yameen ratified amendments to the prison and paroles law today that strips ex-president Mohamed Nasheed of the main opposition Maldivian Democratic Party’s (MDP) presidency.

The changes voted through to the Prison and Parole Act last month by the pro-government parliamentary majority prohibit inmates from holding high-level or leadership posts in political parties.

Nasheed is serving a 13-year jail term following his conviction on terrorism charges related to the detention of a judge during his tenure. The opposition says the trial was a politically-motivated attempt by the government to bar Nasheed from challenging president Yameen in the 2018 presidential election.

President Yameen meanwhile ratified the Maldives Islamic university bill as well as amendments to the new penal code.

The Islamic university legislation seeks to upgrade the existing Islamic college or ‘Kulliya’ to a university while changes to the penal code seeks to bring forward its enactment to July 1.

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Legal status of penal code thrown into doubt

The new penal code is now in force despite parliament delaying its enforcement to July 16, the state human rights watchdog and prominent lawyers have contended .

A provision for postponing implementation of the new penal code was included in an amendment bill passed on April 12, a day before the new law was due to come into force.

The new penal code was ratified on April 13, 2014 with a one-year period for preparation.

The bill changed the date of enforcement from April 13 this year to July 16.

However, the bill stated that the amendments – including the provision for postponement – “will come into force starting from July 16, 2015.”

The provision for postponement was therefore inconsequential as it has not become law, the Human Rights Commission of Maldives (HRCM) and lawyers Maumoon Hameed and Shaheen Hameed argued.

By following the old penal code, Maumoon Hameed said the state is presently enforcing “a law that does not exist.”

The HRCM wrote to the attorney general and prosecutor general last week seeking clarification of the legal dispute, saying it is unclear which criminal law the police, prosecutors, and courts are presently following.

The commission said it was “extremely concerned” about resulting human rights violations in the investigative and judicial processes.

Prosecutor general Muhthaz Muhsin told Minivan News that “as a common rule the old penal code would be in force now”.

“I cannot say anything specifically about the issue until the office has responded to the HRCM’s letter. Also, it is not my role to criticise laws but rather uphold it,” he said.

Former Chief Justice Ahmed Faiz meanwhile dismissed the legal questions surrounding the penal code as an unjustifiably narrow approach in interpreting the law.

He said the “amendment makes it clear that the new penal code will come into effect starting July 16.”

“The amendment will also become part of the law. So the penal code now states the date it would come in to effect. We cannot simply single out one article and interpret the whole law. I think it’s quite clear,” he told Minivan News.

However, lawyers Maumoon Hameed and Shaheen Hameed insisted that the new penal code has replaced the old law.

There are presently no obstacles to enforcing the new penal code, Maumoon Hameed told Minivan News today.

“The new penal code states the old law would be dissolved when the latter law comes into effect. So I believe that the state is implementing a law that does not exist,” Hameed said.

Shaheen Hameed, former deputy speaker of parliament, also said he believes “the new penal code is in effect now”.

The current penal code was adopted in the 1960s and has been widely criticised as outdated, draconian and unsuited to the 2008 constitution.

The main opposition Maldivian Democratic Party had said the postponement was a “politically motivated attempt to continue using the current penal code as a means to harass and intimidate the opposition.”

Under the new code, the punishment for protesters who do not have a criminal record will be less severe as judges are required to take mitigating factors into consideration under new sentencing procedures.

However, the ruling party said more time was needed to raise public awareness and address concerns of religious scholars.

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Supreme Court barred judges from penal code trainings

The Supreme Court barred judges and magistrates from attending trainings on the new penal code, Minivan News has learned.

The penal code was ratified a year ago and was set to come into force this month, but the ruling Progressive Party of the Maldives has delayed its enactment by three months.

According to judges and lawyers, the Supreme Court denied permission for judges and magistrates to attend trainings conducted by the attorney general’s office and UNDP at a special legal sector resource center, which was set up last year to train law enforcement agencies, judges, lawyers and journalists on the new penal code.

“The penal code is a large, extensive document with criminal proceedings that is new to the Maldives. I wanted to attend but the Supreme Court wouldn’t give us permission,” a judge who wanted to remain anonymous said.

The existing penal code was adopted in 1968 and has been criticised as draconian, outdated and not in line with the democratic constitution of 2008.

Former Deputy Prosecutor General Hussain Shameem, who has trained 1099 individuals on the new penal code, said the legal resource center had invited all judges and magistrates, but “none of them attended the trainings.”

Shameem says the legal resource center could train all of the 186 judges and magistrates in the country within two weeks.

Lawyers have meanwhile expressed concern over judges’ capability in implementing the new penal code without the required trainings.

“The penal code has a whole new section on sentencing. It is completely different from procedures used before,” said Hassan Shiyam Mohamed, who advised a parliament committee that had drafted the new penal code.

“It is imperative that judges be trained on its application. We don’t want to see a situation where everyone else is more fluent in it than the judges. I really don’t understand the Supreme Court’s decision.”

The Department of Judicial Administration, which functions under the Supreme Court, says it is now planning a separate training for judges next month, but an official from the DJA said the apex court has not yet approved the trainings.

“There will be a seminar on the penal code for selected magistrates next month. The seminar will be headed by the Commonwealth,” he said.

The Supreme Court was unavailable for comment at the time of going to press.

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New penal code will ‘bury’ Islamic sharia

A religious NGO has said the new penal code will “bury” the principles of Islamic sharia in the Maldives, as it does not criminalise apostasy or include punishments of stoning for adultery and amputation for theft.

“We note with regret that this law has been formulated on a secular, liberal basis that is alien to the purposes of Islamic sharia, after changing the whole shape of the Islamic sharia that should be enforced upon Muslims in an Islamic country,” the conservative Jamiyyathul Salaf said in a statement on Sunday.

Salaf’s statement was released shortly before the pro-government majority in parliament delayed implementation of the penal code by three months, a day before it was due to come into force.

Ruling party MP Ahmed Nihan said more time is needed to raise awareness among the public and address concerns of religious scholars.

The law was ratified on April 13 last year, nine years after it was first submitted to parliament.

The current penal code was adopted in 1968 and has been widely criticised as outdated, draconian and unsuited to the 2008 constitution. The new law has meanwhile been touted as the first time Islamic sharia has been codified while upholding minimum international human rights standards.

However, Salaf claimed attempts to portray the law as sharia-compliant were intended to “deceive the citizens of a 100 percent Islamic nation”.

As the law currently states that shariah punishments must be meted out only for crimes with a punishment fixed in the Quran, Salaf argued that it “completely does away with” the Sunnah (Prophetic traditions) under a “secular philosophy”.

The Sunnah is one of the “fundamental sources” of sharia law and specifies how punishments prescribed in the Quran must be enforced, Salaf said.

The law will also make it easier for criminals to escape punishment and encourage youth to offend, Salaf contended, claiming it was drafted by lawyers with a view to increasing their income.

The language of the law and criteria for constituting a crime are “alien to the principles of Islamic criminal jurisprudence,” Salaf argued.

The mandatory punishment for wrongfully accusing a chaste Muslim of adultery or homosexuality in the law is a jail term of no more than four years, Salaf noted, while meting out the sharia punishment of 80 lashes is left to the discretion of judges.

The offences of ‘murder and reckless manslaughter,’ ‘involuntary manslaughter,’ and ‘negligent manslaughter’ are based on English common law and is contrary to the degrees of murder in sharia, Salaf said.

Several punishments fixed in the Quran and Sunnah such as amputation of the hand for theft, death by stoning for adultery, death for highway robbery, and death or banishment for apostasy are not enforced in the Maldives.

However, flogging for pre-marital sex is implemented while the current administration has ended a six-decade moratorium on the death penalty.

Codifying sharia

In an op-ed published on newspaper Haveeru on April 7, former deputy prosecutor general Hussain Shameem stated that the Maldives is the first Islamic country to pass a criminal law in accordance with sharia and international standards.

While sharia punishments are specified in laws of other Islamic nations, Shameem said the Maldives’ penal code was drafted on the basis of codifying sharia.

“Therefore, the law will not include parts of principles contrary to Islam,” he wrote.

The law criminalises fornication, eating during daylight hours in Ramadan, consumption of alcohol and pork, and anti-Islamic activities, he added.

All crimes with punishments prescribed in the Quran are included, he continued, including the death penalty for murder.

“Therefore, the new penal code of the Maldives is in line with Islamic sharia and a victory for Islamic sharia,” Shameem asserted.

As a senior legal consultant at the Legal Sector Resource Centre established by the attorney general’s office with assistance from the UNDP, Shameem has been involved in training more than 1,100 individuals, including state prosecutors, lawyers, staff and members of independent commissions, customs officers, and 98 percent of police investigators.

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