President Yameen welcomes restrictions on right to silence and legal counsel

Expressing concern over the rise of dangerous crime in the Maldives, President Abdulla Yameen has welcomed restrictions on the constitutional right to remain silent and right to retain a lawyer.

“The constitution guarantees many rights for citizens. But to my interpretation, these rights are only afforded if they do not obstruct the other’s rights. If they abuse their rights and violate those of others, their rights must be narrowed,” he said speaking at a ceremony to inaugurate a link road to be built by China in Laamu Atoll.

At least five people have been stabbed to death this year alone. Today also marks the 130th day since Minivan News journalist Ahmed Rilwan disappeared.

The People’s Majlis on Monday amended the 2010 law banning threats and possession of dangerous weapons and sharp objects to curb the right to remain silent of any suspect arrested for assault with sharp objects.

Suspects who are accused of murder, or of causing death or loss of limb and organ by assault, cannot exercise the right to remain silent “to any extent” and would only be able to speak to their lawyer for the first 96 hours of arrest in the presence of the police.

Further, suspects would only be allowed six hours to appoint a lawyer. If the suspect fails to appoint a lawyer or if the lawyer is not able to present a valid reason for absence from interrogations, police are authorised to question the suspect without a lawyer.

The amendments also relax requirements courts must consider in extending pre-trial detention.

“The most important aims of this administration is to ensure the streets of Malé and the islands are safe. Today, the strongest bill required for this task has been passed,” Yameen said.

Safety and security are crucial for investor confidence, Yameen said.

“If foreign investors are to invest, start mega projects here, they will first consider if they would be able to work in a secure and peaceful environment.”

“Then they will consider if their assets would be safe here. Third, if they would be able to take back the benefits of their work to their countries. Fourth, if any issue they may have can be resolved speedily, free and fairly through the courts,” he added.

Law enforcement agencies would not take undue advantage of their new powers, Yameen pledged.

The amendments passed with 47 votes. Two MPs abstained while 17 opposition Maldivian Democratic Party (MDP) MPs voted against the revisions.

Advocacy NGOs the Maldivian Democratic Network and Commonwealth Human Rights Initiative (CHRI) on November 30 said the amendments “absolutely violates rather than limits fundamental rights of the people” and that, if passed, “will seriously hinder the democratic system Maldives has transited to”.

Opposition leader and former President Mohamed Nasheed has recently expressed concern over deteriorating public safety and said the government’s failure to investigate and prosecute serious crimes are tantamount to “deliberate state-sponsored terrorism.”

He also accused senior government officials and elements of the police of complicity in abductions, murder, arson attacks, and gang violence.

“I note that the government has not investigated such incidents that have occurred throughout the year and serious criminals are on the loose. The state has not pressed charges against them.”

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MPs debate restricting constitutional rights after arrest

The People’s Majlis yesterday accepted legislation that proposes restricting the constitutional rights to remain silent and retain legal counsel for suspects arrested for violent assault.

Presenting the amendments (Dhivehi) to a 2010 law banning “threats and carrying dangerous weapons and sharp objects” on behalf of the government, Progressive Party of Maldives (PPM) MP Ibrahim Didi said “special measures” were needed to curb increasing violent assaults, to ease the public’s fear and anxiety, and to establish public order and safety.

Opposition MPs contend that the changes are unconstitutional, suggesting that the government was blaming a lack of legislation for its failure to curb violent crime.

The amendments state that suspects arrested for assault with sharp objects or dangerous weapons could not exercise the right to remain silent “to any extent”.

Police could also question the suspect if he or she is either unable to have an attorney present within six hours or waives the right to retain legal counsel.

Moreover, the suspect could only consult a lawyer in the presence of a police officer for the first 96 hours after the arrest.

The legislation states that the rights of the accused would be narrowed in reference to Article 16(a) of the Constitution, which states that the rights and freedoms contained in chapter two could be limited by a law enacted by the People’s Majlis “only if demonstrably justified in a free and democratic society.”

While Article 49 of the Constitution states, “No person shall be detained in custody prior to sentencing, unless the danger of the accused absconding or not appearing at trial, the protection of the public, or potential interference with witnesses or evidence dictate otherwise,” the amendments state that the court must consider the criminal record of the accused, police intelligence reports, and other information submitted by police.

Additionally, the legislation stipulates that the Prosecutor General’s (PG) Office must press charges within 15 days of the arrest and the court must conclude the trial and deliver a verdict within 30 days of the case being filed.

In determining guilt, the court shall consider as evidence confessions or statements given at court, audio or video recordings of statements made by the accused to his or her lawyer, autopsy reports, and forensic evidence.

Attorney General Mohamed Anil revealed the government’s intention to narrow the constitutional rights at a press conference in October after a spate of violent assaults in the capital – which police said was a series of gang reprisals – saw three young men stabbed to death.

Speaking at a party rally earlier this week, PPM Parliamentary Group leader Ahmed Nihan reportedly said that the government would not stand to see young people labelled as gangsters.

Several incidents of gang violence have meanwhile occurred in recent weeks. Earlier this week, an 18-year-old was arrested after entering Billabong International High School with a machete during a gang fight.

Anil noted that the proposed amendments would specify harsher penalties for violent assault as the penalties in the current penal code were “far too lenient.”

The amendments propose the death penalty for premeditated murder in a violent assault using a dangerous weapon or sharp object as well as jail terms of up to 20 years for other offences specified in the law.

Following preliminary debate at yesterday’s sitting, the amendment bill was accepted with 66 votes in favour and five against and sent to the national security committee for further review.

“Incompetence and corruption”

Opposition Maldivian Democratic Party (MDP) MP Imthiyaz Fahmy – who voted against the amendments – told Minivan News that the obstacle to securing convictions for violent crimes was “incompetency and corruption within the criminal justice system.”

“When the government completely failed in tackling crimes that have gone out of hand they now blame it on legislation,” he contended.

“And true to their old style, the accused are to be beaten into confessing.”

Prior to the adoption of the new constitution in August 2008, the vast majority of convictions were based on confessions extracted during police interrogation and the police were often accused of torture and coercion.

During the parliamentary debate, PPM MP Ibrahim Didi said some cases were stalled at court for up to six years while the amendments would expedite the process and prevent the accused intimidating witnesses.

Several MPs objected to suspects being able to remain silent after committing serious crimes and insisted that violent crimes could be reduced if the bill is passed into law.

PPM Ahmed Thoriq suggested some rights guaranteed in the constitutional were unsuited to the Maldives.

Jumhooree Party Ali Hussain, however, contended that while fundamental rights and freedoms could be narrowed, completely depriving individuals of the right was unconstitutional.

PPM MP Mohamed Nasheed argued that preventing suspects from consulting a lawyer in private for four days was excessive and advised reducing the period to 36 hours.

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MPs claim bill on the right to remain silent contradicts constitution

Parliament has divided opinions on the Bill on the Right to remain silent submitted by independent member of parliament, Mohamed Nasheed.

The bill had its second reading in parliament on Tuesday, following the first reading on October 3. During the ensuing one hour debate, Maldivian Democratic Party (MDP) MPs mainly spoke against the bill, while most MPs aligned with the ruling coalition supported the bill and advocated for it to be expedited.

“The right to remain silent is a fundamental basis on which the criminal justice system in many other countries are built upon. They do not have to explicitly define this in their laws as it is already well established in their respective societies,” Nasheed explained in parliament today.

“Our case is different. We first heard the phrase ‘the right to remain silent’ with the ratification of the 2008 constitution,” Nasheed said, adding that unlike other countries, Maldivians did not have any local material to refer to for better understanding of the right.

He said that the bill therefore aimed to define clearly what comes and what does not come within the boundaries of the right to remain silent, where this right can be applied and the legal outcomes that may ensue.

No threat to MPs

A number of MPs, some from the ruling coalition parties and some independent, spoke in favour of the bill. They insisted that narrowing the right to remain silent would assist in police investigations, thereby contributing to bringing down crime rates.

Some MPs stated that this bill only caused inconvenience to criminals, explicitly stating that it posed no risk to MPs and politicians.

Independent MP Ahmed Amir said that the MPs themselves needed to prove to the nation that all of them were people who refrained from getting involved in criminal activities, asking “Why then must we be concerned about this bill? I do not believe any member here needs to be concerned about this bill.”

Amir said the parliament had narrowed the same right in the Act on Sexual harassment against children, adding “why then are we so reluctant to pass an act to narrow down this right as a whole? That this may cause a loss to us, or the nation, is in my view an irresponsible stance to take.”

Meanwhile, DRP MP Mausoom stated the importance of expediting the bill, pledging complete support to the draft bill.

“At a time when we started moving towards democracy, one reason which led to a number of citizens expressing discontent with a democratic system is that the rights of criminals began exceeding those of regular citizens,” Mausoom said, stating that it was of extreme importance that the bill on the floor be sent to the relevant committee and passed at  the earliest.

PPM MP Ahmed ‘RedWave’ Saleem also supported the bill, and put forward his opinion in parliament.

“On judgement day you cannot exercise the right to remain silent. If you do, your organs will speak for you. However, organs cannot speak today, and so we must speak with our own tongues. If police ask you if you have committed a crime, you can simply say no even if you have committed it, so what is there to be afraid of?” Saleem said.

Addressing the MDP MPs Saleem said, “I want to tell my MDP brothers that this poses no threat to them, only to criminals. There is no threat to any politicians either.”

Contradictions with the Constitution

MPs who spoke against the bill pointed out that the bill directly contradicted articles in the constitution.

Article 20 of the proposed bill states that should a person choose to remain silent, after which sufficient evidence is provided in courts to prove without doubt that he is guilty as accused, then his decision to remain silent can be viewed as further proof against him. It further says that this is because instead of trying to prove his innocence, the accused had chosen to remain silent.

MDP MPs Ali Riza and Ali Waheed stated that this article was in direct contradiction to Articles 51(a), 51(c), 51(d), 51(e), 51(h) and 52 of the constitution.

Ali Waheed further stated, “I do not believe that any Act has the power to completely turn around a right guaranteed in Chapter 2 of the Constitution.”

From the government coalition parties, Jumhoree Party MP Abdulla Jabir also spoke against the proposed bill.

“We have heard in the past that two or three people would be arrested, tortured, forced to confess, and then claiming the investigation to be completed, these people would be sentenced undeservingly. Are we to move back into that again?” he said.

Jabir stated that he would not support the bill as he felt it would bring back the culture of torture, forced confessions and convictions of the innocent.