Supreme Court criminalises offences within the exercise of freedom of assembly, expression

The Supreme Court decided in a 6-1 ruling last week that the police should investigate criminal offences carried out within the exercise of the rights to freedom of assembly and expression.

The ruling comes in a case filed by the Attorney General in September requesting the court to determine that public disturbances in the name of political protests were not within the scope of the rights guaranteed in the constitution.

These included protests outside private residences late at night, use of defamatory language and incitement to violence – “calling for people to be killed, hanged and attacked.”

The Supreme Court was asked to declare that such actions infringed upon the right to life, liberty and security of persons (article 21); the right to privacy and respect for private and family life (article 24); the right to protect reputation and good name (article 33); and special protection for children, young, elderly and disadvantaged people (article 35).

The apex court ruled that activities that violate “public safety, health, tranquillity and morality” could be considered criminal offences and falls within the purview of the security services.

The case was filed by the Attorney General following months of protests by the formerly ruling Maldivian Democratic Party (MDP) and the dismantling in March of the party’s protest camp by security forces.

President’s Office Spokesman Masood Imad told Minivan News last month that the government fully supports the right to protest, but it needs to be done in such a manner that does not adversely affect the lives of others.

“A protest should be about changing something. A protest conducted in residential areas has nothing to do with parliament. Public protest and public nuisance are two very different things,” he contended.

The MDP meanwhile likened the move to Bahrain’s efforts to outlaw protesting.

“The MDP strongly condemns efforts to restrict freedom to assembly by the government. One of the most fundamental clauses in the new constitution is the right to protest and we are witnessing democratic gains fast slipping,” said MDP Spokesperson Hamid Abdul Ghafoor.

Dissenting opinion

In his dissenting opinion, Justice Ahmed Muthasim Adnan – the only Supreme Court Justice with a background in common law – concluded that establishing a judicial guideline for the exercise of rights and freedoms was not within the remit of the Supreme Court.

He contended that such principles “should be determined in a law passed by the People’s Majlis.”

Justice Adnan noted that the case was considered ‘ex parte’ or conducted for the benefit of one party.

He noted that according to article 16 of the constitution, the rights and freedoms enshrined in chapter two were “subject only to such reasonable limits prescribed by a law enacted by the People’s Majlis in a manner that is not contrary to this Constitution. Any such law enacted by the People’s Majlis can limit the rights and freedoms to any extent only if demonstrably justified in a free and democratic society.”

It was therefore clear that rights and freedoms could only be restricted or narrowed through a law passed by parliament, Justice Adnan added.

The Attorney General’s request was not a matter to be decided by the Supreme Court, he concluded, as “these problems should be proposed to the People’s Majlis for a solution.”