Tag: penal code

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Critics say the existing penal code adopted in 1966 is outdated, draconian and not in line with international human rights conventions the Maldives is signatory to.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

Parliament’s national security committee plans to defer by three months the enforcement of the new penal code, which will bring widespread changes to the Maldivian legal system, reports Haveeru.

The penal code is due to come into force on Monday, April 13 but ruling Progressive Party of Maldives MP Jameel Usman told the local daily that he believed more time was needed to raise awareness among the public.

The current penal code was passed in 1966.

Maldivian Democratic Party MP Mariya Ahmed Didi accused the government of delaying implementation of the new code in order to prosecute opposition supporters and mete out harsh punishments under existing laws.

At today’s meeting of the oversight committee, which is dominated by pro-government lawmakers, Usman proposed adding a clause to the penal code to postpone its enforcement.

The oversight committee was reviewing a government-backed bill submitted to bring minor changes to the new penal code ahead of its enforcement. Usman’s clause has been added to the amendment bill after a majority of the committee’s MPs voted in favour.

A sitting of parliament is meanwhile expected to take place on Sunday for voting on the bill. If the legislation is passed, President Abdulla Yameen will have to ratify it on the same day to postpone the implementation.

The revised penal code was passed on April 1, 2014 with a one-year period to prepare institutions for the seminal changes to the criminal justice system.

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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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Home Minister Umar Naseer pleads not guilty to charges at Criminal Court

Home Minister Umar Naseer denied charges of ‘disobedience to an order’ at the first hearing of his trial at the Criminal Court today.

Judge Abdulla Didi told Naseer’s lawyer to respond to the charges at the next trial date, according to local media.

Naseer is accused of calling for 2,000 volunteers on January 23, 2012 to storm the Maldives National Defence Force (MNDF) headquarters with 50 ladders during the two weeks of protests sparked by the military’s controversial detention of Criminal Court Chief Judge Abdulla Mohamed.

On the night in question, Umar told anti-government demonstrators in front of the Maldives Monetary Authority building that they should use tactics to tire out the soldiers on duty before climbing into the military barracks, at which point “the people inside will be with us.”

“From today onward, we will turn this protest into one that achieves results,” Naseer had said.

“We know how people overthrow governments. Everything needed to topple the government of this country is now complete.”

After he was questioned by the police in September 2012, Naseer told the press that “there will be no evidence” to prove he committed a criminal offence.

“In my statement I did not mention where to place the ladders or where to climb in using the ladders.” Naseer had said.

If convicted, Naseer faces banishment, imprisonment or house arrest not exceeding six months or a fine not exceeding MVR150 (US$ 10) under article 88(a) of the penal code.

The case against Naseer was submitted to the Criminal Court by the Prosecutor General’s office in December 2012 after police concluded their investigation.

The 22 consecutive nights of protests by the then-opposition in January 2012 culminated in the resignation of President Mohamed Nasheed on February 7 in the wake of a violent mutiny by riot police officers.

Speaking at a Progressive Party of Maldives rally days after the controversial transfer of presidential power, Naseer claimed he had warned the president’s closest aides that Nasheed could “lose his life” if he did not comply with the ultimatum to resign.

Naseer said he told the president that he could “either surrender with bloodshed or surrender peacefully”.

Naseer also told Australia’s SBS Dateline programme that he was organising the protests from a “command centre” and that he feared for Nasheed’s life.

In January 2013, Naseer said the ousting of the Maldivian Democratic Party government was the result of “planning, propaganda and a lot of work.”

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President Yameen ratifies penal code before leaving for Japan

President Abdulla Yameen today ratified the new penal code shortly before departing on an official state visit to Japan.

The People’s Majlis passed the resubmitted code on April 1, which will replace the previous version which has remained unchanged since the 1960s.

The new law will come into force one year after ratification and publication in the government gazette, though local media today reported that Yameen has advised the Attorney General to make a number of changes during the transitional period.

Haveeru also reported that the president ratified the recently passed anti-money laundering bill, as well as amendments to the Religious Unity Act and the Judges Act.

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Parliament passes revised penal code

Parliament passed the revised penal code today more than four years after it was resubmitted to the 17th People’s Majlis.

If ratified by the president, the new penal code will replace the existing law that was drafted and enacted in the 1960s.

The new law will come into force one year after ratification and publication in the government gazette.

The revised penal code (Dhivehi) was passed with 48 votes in favour, one against and three abstentions.

The penal code was first put to a vote in December, 2013, after review by a select committee. It was rejected 36-34 with one abstention and returned to the committee.

Parties in the ruling coalition issued a three-line whip to defeat the bill on the grounds that principles of Islamic Shariah law were not adequately reflected in the final draft.

The bill passed today was however the same draft voted on in December with three amendment submitted by an MP. MPs had been required to submit amendments before January 20.

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

Following its initial submission to the 16th People’s Majlis in 2006, the draft legislation was resubmitted in late 2009 after the election of the 17th Majlis, where it remained in committee stage until December last year.

Opposition Maldivian Democratic Party MP Ahmed Hamza – chair of the select committee that reviewed the draft legislation – told Minivan News in December that delays in completing the review process was due to the long periods required for seeking commentary and consultation from state institutions such as the Attorney General’s Office and the Islamic Ministry.

During the parliamentary debate in December, MP Ibrahim Muttalib insisted that “no human being has the right to rephrase divine laws in Islamic Sharia into separate articles in a law.”

Progressive Coalition MPs contended that some penalties in the final draft were in conflict with provisions of Shariah law.

Religious conservative Adhaalath Party Sheikh Ilyas Hussain had also previously criticised the bill, claiming that it would “destroy Islam”. Ilyas’ remarks subsequently prompted a parliamentary inquiry.

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Man sentenced to four years and six months in jail for stealing four lotion bottles

The Crminal Court has sentenced Ali Rasheed to four years and six months in jail for stealing three lotion bottles rom Lily F&B Suppliers store in Malé in 2011.

The verdict was based solely on Rasheed’s confession. According to the Crminal Court, Rasheed had been convicted of three counts of theft previously.

Under the Maldives Penal Code, if an individual is found guilty of theft for the fourth time, he or she may be sentenced to four years in jail or banishment. The Criminal Court added six months to Rasheed’s term for stealing from a shop.

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Committee to re-submit Penal Code in March

Parliament’s Special Committee for Penal Code Review has stated that the committee will complete work on revising the bill by early March.

The final draft of the penal code – which had taken seven years in the committee stage – was rejected in yesterday’s parliamentary sitting with 36 votes. MPs then voted to send the bill back to the drafting committee

Maldivian Democratic Party (MDP) MP and chair of the committee Ahmed Hamza told Minivan News today that the committee will send letters today to every individual member of parliament, asking them to submit any desired amendments to the bill by January 20.

On receiving the amendments, the committee will review them and decide on those to be accepted by January 30, after which the revised bill will be sent to the parliament floor for voting on February 5.

The committee will work with a representative from the Attorney General’s Office when reviewing amendments submitted by parliament members, Hamza said.

“The committee has decided today to work by this plan. My hope is that both the government and other members will send in all the amendments they want within this period of time, and that we will be able to complete this work. Our aim is to table the report by the time parliament reconvenes on March 1,” Hamza said.

Bill rejected by a narrow margin

Hamza said he was “astounded” by the rejection, given that the review committee which had passed the draft was representative of all the political parties.

Members from the government coalition parties had voted against the bill, with Progressive Party of Maldives (PPM) MP Ahmed Mahloof confirming to Minivan News yesterday that a coalition whip-line had been issued for the matter.

In addition to pro-government members, Maldivian Democratic Party (MDP) MP Abdulla Jabir has also voted against passing the Penal Code.

Jabir was not responding to calls at the time of press. However, he is quoted in local media as saying he had voted against the bill as he found it to be “too harsh”.

Two members abstained from voting on whether to return the bill to the committee.

MP Ibrahim Muhthalib refrained from voting, stating that “no human being has the right to rephrase divine laws in Islamic Sharia into separate articles in a law” and that he would abstain from voting on the matter as some scholars believe that participation in such an act may be blasphemous.

While voting records are not yet published on the parliament’s official website, an official confirmed that independent MP Mohamed Nasheed was the second member to have refrained from voting.

MP Nasheed was also not responding to calls at the time of press.

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Penal Code returned to drafting committee

Parliament has sent the Penal Code back to the special committee tasked with revising it with a majority of 61 votes. While three members voted against re-sending it to committee, two abstained from the vote.

The final draft submitted to the parliament floor was rejected by 36 votes out of the 72 members present in Sunday’s session, after which a vote was taken whether to send it back to committee for review.

Members from the government coalition parties voted against the bill, with Progressive Party of Maldives (PPM) MP Ahmed Mahloof confirming to Minivan News today that a coalition whip-line was issued for the matter.

The Penal Code was submitted to the floor after seven years of review in the committee, having been initially submitted in 2006.

Maldivian Democratic Party (MDP) MP Ahmed Hamza – Chair of the Penal Code review committee – stated that the reason for the long duration of review is primarily due to the long periods required for reviewing and commenting by state institutions including the Attorney General’s Office and the Ministry of Islamic Affairs.

The bill, if ratified, will replace the 52 year old penal law which is currently in effect.

The Penal Code and religion

Much of the arguments presented against the Penal Code revolved around the concepts of religion and Sharia law not being “sufficiently reflected” in the final draft.

Jumhooree Party (JP) MP Ibrahim Muhthalib stated that “no human being has the right to rephrase divine laws in Islamic Sharia into separate articles in a law” and that he would abstain from voting on the matter as some scholars believe that participation in such an act may be blasphemous.

Maldives Development Alliance (MDA) MP Ahmed Amir echoed Muhthalib’s concerns and added that penalties on crimes which have a hadd [fixed punishments specifically mentioned in the Quran] sentences in Sharia Law are what most people have found concerning about the bill.

MP Ibrahim Riza who voted to send the bill back to the review committee said that the bill included some penalties which contradicted Sharia law mandates.

Religious conservative Adhaalath Party Sheikh Ilyas Hussain has also previously in March criticized the bill in sermons saying it will “destroy Islam”, prompting a parliamentary inquiry.

“If it is passed, there is no doubt that there will be no religion in this Muslim society that claims to be 100 percent Muslim. There will be no Islamic punishments. Refusing to incorporate even a single hadd is destroying Islam,” he had said then.

However, presenting the bill to parliament today, Hamza stated that in light of academic and technical expertise of the committee members, irreligious effects in the penal code have been brought to a minimal level.

“We are aware that various scholars from around the globe have commented on this work by Professor Paul Robinson,” Hamza said, referring to the legal expert from University of Pennysylvania Law School, under whose leadership the first draft of the Penal Code had been prepared on the request of then Attorney General Hassan Saeed in January 2006.

“Keeping this in mind, we took care to use our academic and technical capacity to minimalize any irreligious effects that might have been in this bill’s initial draft. Man-made laws are always less perfect than divine laws,” he stated.

The other main reservation put forth by members is the short period of time given to review the bill and submit amendments in.

The committee opened up the draft for amendments from December 24 to 26. On Saturday, December 28, the committee announced that no amendments had been submitted within the given timeframe.

Dhivehi Rayyithunge Party (DRP) MP Abdulla Mausoom, JP MP Shifaq Mufeed, PPM MP Ahmed Nihan voiced concerns about the short period of time given for review when speaking to Minivan News today.

Mausoom said that besides the time limitation, he also noticed double penalties for the same offence in the bill, and that is why he voted to return the bill to parliament.

“The penal code is as thick as a generic A4 ream of papers. It is unrealistic to ask us to read and comment on it in such a short time. What we have now is a penal code that has existed for very many years. When we pass a new one, I do not wish it to be one that calls for amendments to be submitted every other day. We are not of the mindset that we want to reject it, but we want enough time to review it in light of the Maldivian people’s way of life, Islamic Sharia and existing laws,” Shifaaq stated.

Meanwhile Nihan described the bill as “a rushed job done to bring an end to years of it being pending in committee”.

“There isn’t a single member in the committee who has actually read this bill. How can anyone spend time on it when there are so many other important bills that also call for our attention, as well as the annual budget? It has to come with enough time allowance for us to submit amendments,” he stated.

Bill review

The review committee’s Chair Hamza maintains that the government was given sufficient time and opportunity to submit all and any desired amendments to the bill.

“Voting records show that it was members of the government coalition who rejected this bill. We provided sufficient time allowances for them to submit amendments. We have even included 12 of the amendments submitted by the Attorney General,” Hamza explained.

“In fact, we worked at length both with former Attorney General Azima Shakoor and current successor Mohamed Anil. We also gave opportunities for political parties to submit amendments, where even PPM sent in submissions. I do not understand why it was rejected after all of this. I am astounded. I sincerely hope the government will explain its reasons for rejecting the bill in the form of an official statement,” he continued.

“I do not see how it will be possible to ever pass the new Penal Code if it is to be left as everyone’s lowest priority. Members need to make time and work to pass this bill at the earliest. I have now scheduled a meeting of the committee for tomorrow. I personally hope to review this, open it up for amendments, incorporate what we will from those and have it resubmitted to the parliament floor by early March next year,” Hamza said.

Responding to members’ criticisms, Hamza pointed out that members had not asked for additional time for reviewing the bill during today’s parliament session, and had instead voted to return it to committee.

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