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.


Civil Court condemns move to dismiss Chief Justice Faiz and Justice Adnan

The seven-member Civil Court and several prominent lawyers have condemned the judicial watchdog Judicial Service’s Commission’s (JSC) recommendation to remove Chief Justice Ahmed Faiz and Justice Muthasim Adnan from the Supreme Court bench.

In a resolution passed last night, the Civil Court said the People’s Majlis had “forced” the JSC to deem Faiz and Adnan unfit for the Supreme Court bench without due process, through an “unconstitutional” amendment to the Judicature Act.

The amendment, passed on Wednesday and ratified on Thursday, reduced the seven-member Supreme Court bench to five judges.

It also mandated the JSC to deem two judges guilty of gross misconduct and gross incompetence and recommend their dismissal within three days.

The People’s Majlis is currently holding an extraordinary sitting to vote on the recommendation.

The Civil Court Chief Judge Ali Rasheed Hussein, and Judges Aisha Shujoon, Jameel Moosa, Hathif Hilmy, Mariyam Nihayath, Huseein Mazeed, and Farhad Rasheed said the move was against principles of natural justice and several international conventions, and could “destroy judicial independence” in the Maldives.

“We believe we are obliged to comment on the issue for the sake of the democratic and judicial history of the Maldives, and we believe keeping silent at this juncture amounts to negligence” the bench said.

The People’s Majlis had failed to provide the JSC with any instructions on recommending judges for dismissal, the Civil Court claimed.

The Civil Court noted the United States of America in 1886 had voted to reduce their ten-member Supreme Court to seven, by deciding the state would not appoint new members to the bench when a judge’s seat became vacant.

Meanwhile, President Abdulla Yameen’s nephews, lawyers Shaheen Hameed and Maumoon Hameed, have spoken out against the ruling Progressive Party of the Maldives’ (PPM) attempt to dismiss the two judges.

Shaheen told CNM that the JSC had failed to provide Faiz and Muthasim to defend themselves against charges of misconduct and negligence.

“[The JSC] have said it is alright to dismiss these first two judges by flouting all procedures, but that due process must be followed in dismissing other judges. This is gross violation of equality before the law,” he said.

The ruling party’s “unacceptable” attempt to dismiss Faiz and Justice is the epitome of injustice, and appears to demonstrate that the Supreme Court “is a coat tailored for a specific individual,” Maumoon has said on his Facebook status.

The JSC’s sudden ruling, without an investigation and without any evidence within hours of the amendment’s ratification shows it was a pre-decided conclusion, Maumoon contended.

He also questioned why the JSC had found Supreme Court Judge Ali Hameed, implicated in a series of sex tapes with three foreign women, fit for the bench.

Lawyer and Jumhooree Party MP Ali Hussein in an interview with Haveeru called the attempt at dismissals an “atrocity.” Criminals are guaranteed a fair trial, but the two judges’ right to speak in their defense had been violated, he said.

“The two were appointed because they are capable. If there has been no changes, it is an issue if they are judged incapable because of an amendment to the law. This means those who hold a majority in the JSC can get rid of judges they do not like, not because they are incapable,” he said.

MPs have not yet been given details of the JSC ruling. Speaking to Minivan News on Thursday, JSC Secretary General Abu Bakr said the commission had decided to keep proceedings confidential until a Majlis vote.

The Maldivian Democratic Party (MDP) has said it will vote against the amendment. The Jumhooree Party (JP) has not yet taken an official stand while Adhaalath Party Anara Naeem said she will wait on details of the JSC verdict before she takes a stand.


Government can’t restrict judges from entering Supreme Court: lawyer Shaheen Hameed

Prominent lawyer Shaheen Hameed has said that the government did not have the authority to restrict judges of the Supreme Court from entering the court, reported radio station SunFM.

Shaheen Hameed is the nephew of former President Gayoom, and has represented current President Mohamed Nasheed when he was arrested by the former administration.

SunFM reported that Shaheen claimed he had lately noticed the armed forces and power of executive attempting to work beyond the laws.

Moreover, Shaheen Hameed claimed the government was influencing the juducial system, an institution stated as independent in the constitution of the Maldives, and that the attempt was “against the spirit of the constitution.”

The government contends that the Supreme Court and the interim judges ceased to have legitimacy on conclusion of the transitional period last Saturday, with the annulment of Chapter 14 governing transitional matters, and has urged parliament to legislate the appointment of a new Supreme Court as a matter of urgency.