Tag: supreme court

‘Drug trafficker’ acquitted on lapses highlighted in former president’s trial

Citing severe procedural irregularities, the Supreme Court on Thursday acquitted a man sentenced to life in prison over drug trafficking charges.

The unprecedented ruling deals with similar lapses noted by former president Mohamed Nasheed and former defense minister Mohamed Nazim, who were sentenced to jail on terrorism and weapons smuggling charges, respectively.

In acquitting Abdulla Unais, the Supreme Court said he was not given access to a lawyer or the opportunity to call defense witnesses.

Unais was arrested in Addu City in May 2012. Police officers found more than 46 grams of heroin in envelopes on the ground at the time of his arrest and in his trouser pockets.

Unais had denied charges and claims he was framed by police officers.

The Supreme Court said the lower courts should have investigated Unais’ claims of a police set-up by verifying if the accused police officer had left any fingerprints on the envelope. The ruling went onto question the validity of the police officer’s testimony.

The criminal court’s sentencing of Unais without providing access to legal counsel contravenes the constitution, which states that the government must set lawyers for individuals accused in serious crimes, the ruling said.

Unais, who had remained in police custody throughout the duration of his trial, had repeatedly told the criminal court he was unable to hire a lawyer, the Supreme Court said.

Nasheed, in a petition to the UN working group on arbitrary detention, noted that he was denied legal counsel at a first hearing. Then, when his lawyers recused themselves in protest over the criminal court’s refusal to provide sufficient time to prepare defense, judges proceeded with hearings, despite Nasheed’s repeated request to hire new lawyers.

The government maintains due process was followed. A ruling is expected in September or October.

Nasheed’s 19-day trial was criticized by foreign governments and UN rights experts. The UK Prime Minister David Cameron, the EU parliament and high profile US senators have called for his immediate release.

Nazim, meanwhile, contends rogue police officers had framed him by planting weapons during a midnight raid. The criminal court, however, did not allow the former defense minister to call witnesses to prove his case.

Nazim’s lawyers also contend anonymized statements provided by the police officers involved in the raid are inadmissible in court.

Appeal hearings in Nazim’s case have been stalled after the Supreme Court transferred two of the five judges on the panel to a newly created branch in Addu City.

Nasheed and Nazim’s imprisonment triggered a political crisis with daily protests and historic antigovernment marches. The main opposition Maldivian Democratic Party is now negotiating with the government for the pair’s release. Nasheed is currently under house arrest.

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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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Majlis shutdown to ‘block changes to new penal code’

Sittings of the People’s Majlis were suspended this week to block MPs from submitting changes to the long awaited penal code, which is due to come into force at midnight tonight.

The Supreme Court has compiled a 150-page draft of a new bill to overhaul the modern penal code. Explaining the decision to suspend sittings, a senior ruling party MP said: “We will not allow the judiciary to dictate laws and overstep its mandate.”

Minivan News has obtained some excerpts of the judiciary proposed bill. The apex court wants to set the age of criminal responsibility to seven years and jail terms and hefty fines for defaming state employees.

The new penal code, passed by the Majlis in 2014, was due to come into force in April this year. But the ruling Progressive Party of the Maldives (PPM) delayed its enforcement until July 16, claiming more time is needed to raise public awareness.

Attorney General Mohamed Anil and Prosecutor General Muhthaz Muhsin had opposed the delay. Judges have been working on a draft since then, multiple sources have told Minivan News.

The new penal code is to replace a law adopted in 1968. It sets the age of criminal responsibility at 15 years. Offenders between 15-18 years will be prosecuted by the Juvenile Court, and will receive lighter sentences.

While the draft proposed by the apex court also sets lighter terms for children between 7-18 years, it gives judges the discretion to mete out full punishments provided in the Islamic Shariah.

The apex court also wants to introduce hard labor in jail as a punishment.

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.

If an unmarried man has extramarital intercourse, he will be sentenced to a year under house arrest and 100 lashes. An unmarried woman who simply invites extramarital sex is sentenced to 100 lashes and a year under house arrest.

The apex court’s draft also criminalizes abortion, unless it is carried out to save the mother’s life or for a reason stated in another law. The new penal code legalizes abortion up to three months after conception, and makes exemptions for cases of rape even after the three-month cut off.

Terrorism is loosely defined as committing murders, kidnappings, hijacking of vessels, damaging diplomatic missions with the intent of undermining the constitution or influence government policy. Offenders can be sentenced to 10-15 years in jail.

Other offences in the draft include leaving goods on the street or placing chimneys or drainage systems in a manner that disturbs others. The offence is punishable with up to three months under house arrest and a fine.

Meanwhile, if the guardian of a mentally challenged person “sets them loose in a public area and they go on to disturb or cause harm,” the guardian will be punished with three months of house arrest and a fine of up to MVR2,000.

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

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

With the new penal, 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.

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

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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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US ready to ‘deepen partnership’ with Maldives, seeks progress on democracy

The US Assistant Secretary of State Nisha Biswal has said that the US is ready to strengthen relations with the Maldives but seeks more progress on democracy and human rights in the Maldives.

Following a call with Foreign Minister Dunya Maumoon to offer Ramazan greetings, Biswal tweeted that she had reiterated concerns regarding the “erosion of democratic institutions” and of “fundamental freedoms.”

Diplomatic pressure has been increasing on the Maldives over the jailing of opposition politicians, including ex-president Mohamed Nasheed and crackdown on opposition protests.

During a visit to the Maldives last year, Biswal said judicial independence and politically motivated threats remain an issue in the Maldives, despite the young democracy’s accomplishments.

The assistant secretary of state’s most recent comments come two weeks after the Supreme Court passed a ruling against the Human Rights Commission of the Maldives (HRCM), barring it from communicating independently with foreign organizations.

The court’s ruling on June 16 found a human rights assessment submitted by the watchdog to the UN unlawful, and imposed an 11-point guideline prescribing how the HRCM should operate within the law.

The US has taken an unprecedented interest in recent events in the Maldives.

Earlier this month, US Senators John McCain and Jack Reed urged their government to press for the release of all political prisoners in the Maldives, including Nasheed.

The two Senators, who head the Senate Armed Forces Committee, warned that the Maldives’ decisions are “having serious adverse consequences on its relationships abroad.”

The US Secretary of State John Kerry in May said that democracy is under threat in the Maldives.

“We’ve seen even now how regrettably there are troubling signs that democracy is under threat in the Maldives where the former president Nasheed has been imprisoned without due process,” Kerry told the Sri Lankan press.

“This is an injustice that needs to be addressed soon.”

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UN Human Rights Council mulls action against Maldives

The President of the UN Human Rights Council has called the imposition of 11 guidelines on the Maldives human rights watchdog by the Supreme Court as “unacceptable,” and said he stands ready to take appropriate actions within his mandate.

“National human rights institutions play a pivotal role in independently monitoring and protecting human rights. The imposition of restrictions on the HRCM [Human Rights Commission of the Maldives] for its engagement, in particular, with the Human Rights Council, and its mechanisms is unacceptable,” said Joachim Rücker in a letter to a New-Delhi based advocacy group.

The Supreme Court had found a human rights assessment submitted by the HRCM to the UN’s Universal Periodic Review unlawful, and set several guidelines prescribing how it should operate within the law.

The guideline bars the HRCM from communicating independently with foreign bodies, and orders it to protect unity, peace and order, and uphold Maldivian norms and faith.

The Asian Center for Human Rights (ACHR) on June 26 had urged Rücker to condemn the Supreme Court’s judgment against the HRCM, stating that “the act of reprisal” is unheard of.

If the UN human rights council fails to condemn it, it would set dangerous precedent across the world, the NGO warned.

In reply, Rücker said: “Please rest assured that I will continue to closely follow this case, continue the dialogue with the Government of the Maldives, as Member State of the Human Rights Council, and stand ready to take appropriate actions within my mandate.”

The issue had been raised at a human rights council meeting on June 26, and had been discussed at a bureau meeting with vice-presidents, he said. Concern had been raised with Foreign Minister Dunya Maumoon as well.

The ACHR had previously called on the UN Human Rights Council to suspend the Maldives from the council.

Suhas Chakma, the Director of the ACHR, on Wednesday called upon President Abdulla Yameen to place a new bill in the parliament to revoke the Supreme Court’s verdict against the HRCM before the end of the ongoing UN Human Rights Council.

The 29th session of the UNHRC is taking place from June 15 to July 3 in Geneva, Switzerland. The inter-governmental body is comprised of 47 member states and meets for 10 weeks every year, in March, June and September.

The Maldives was first elected to the council in 2010 and re-elected for a second term in November 2013.

The ACHR has special consultative status with the UN Economic and Social Council and provides information and complaints to national human rights institutions and the UN bodies and mechanisms.

The government had previously defended the court’s judgment, insisting that the court’s decision “clearly stresses” the commission’s independence.

The foreign ministry said the guidelines “do no stipulate, in any specific terms, any restriction or limitation on the HRCM’s ability to submit reports to the UN or any other national or international organ in the future.”

 

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Supreme Court bans clubs and associations within judiciary

The Supreme Court has prohibited employees of the judiciary from forming clubs and associations.

In an open letter released today, the apex court said staff at courts can organise fraternal or social activities after informing the department of judicial administration (DJA), but forming clubs or associations is not permitted.

“It is not permitted to create a club or association under any name in any court,” reads the letter signed by Chief Justice Abdulla Saeed.

In February, the Supreme Court issued a circular stating that the judiciary’s staff could only form associations or clubs in accordance with a policy set by the Supreme Court and that their activities must be overseen by the Supreme Court-controlled DJA.

The circular was issued hours an annual inter-court futsal tournament called the ‘Judiciary Cup’ began in Malè.

Participants of the tournament told Minivan News at the time that they went ahead after deciding that the circular would only apply to future activities.

 

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UN urged to condemn guideline for human rights watchdog

A New Delhi-based human rights NGO has called upon the UN human rights council to condemn a Maldives Supreme Court judgment barring the human rights watchdog from communicating with foreign organisations without government oversight.

In a letter to the council’s president Joachim Rücker, the Asian Center for Human Rights (ACHR) urged the UN to “take measures to rescind” the apex court’s judgment and to ensure accountability by “bringing the perpetrators, i.e. judges of the Supreme Court who initiated the suo moto proceedings against the Human Rights Commission of Maldives (HRCM) to, justice.”

The court’s ruling on June 16 found a human rights assessment submitted by the watchdog to the UN unlawful, and imposed an 11-point guideline prescribing how the HRCM should operate within the law.

The ACHR warned that the “act of reprisal” against the HRCM for “cooperating with the Universal Periodic Review (UPR) is unheard of and will set dangerous precedent across the world” if the UN human rights council fails to condemn it.

The 11-point guideline states that the HRCM must protect unity, peace and order, and uphold Maldivian norms, faith, etiquette and the rule of law.

The Supreme Court also said that the HRCM must not overstep its mandate, while ordering the independent body to cooperate with government institutions, communicate with foreign bodies through the relevant government institutions, and protect the Maldives’ reputation.

The verdict “has the potential to frighten the national human rights institutions and encourage dictatorial regimes across the world to take such repressive measures to prohibit cooperation with the United Nations human rights mechanisms,” read the ACHR’s letter.

The ACHR has special consultative status with the UN Economic and Social Council and provides information and complaints to national human rights institutions and the United Nations bodies and mechanisms.

In its submission to the UN Universal Period Review, the HRCM said the Supreme Court controlled and influenced the lower courts to the detriment of the Maldivian judiciary.

Days after the report was publicised, the Supreme Court brought charges against the HRCM members under controversial suo moto regulations that allow the apex court to prosecute and pass judgment.

Chief Justice Abdulla Saeed said the September 2014 report by the HRCM was biased and undermined judicial independence in the Maldives.

The HRCM’s submission to the UPR was based on reports by the UN Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul.

The apex court said it had previously rejected Knaul’s report as invalid and reprimanded the HRCM for its alleged failure to consult the Supreme Court in writing the UPR submission.

The government has meanwhile defended the court’s judgment, insisting that the court’s decision “clearly stresses” the commission’s independence.

The foreign ministry said the guidelines “do no stipulate, in any specific terms, any restriction or limitation on the HRCM’s ability to submit reports to the UN or any other national or international organ in the future.”

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President asks UN for help to resolve political crisis

President Abdulla Yameen has invited a UN team to the Maldives to help resolve the Maldives’ political crisis triggered by the imprisonment of ex-president Mohamed Nasheed.

In a phone call with UN Secretary General Ban Ki-moon on Tuesday, President Yameen asked for help “to cool down” the Maldives’ political crisis. Ban welcomed the offer, a statement by the foreign ministry said.

Nasheed, who is serving a 13-year-jail term on terrorism charges, was transferred to house arrest on Sunday for health reasons. His house arrest was extended by eight weeks, hours after the opposition parties announced they would support a government-backed constitutional amendment to set new age-limits to the presidency.

The amendment passed today with overwhelming bipartisan support.

International pressure has been mounting on the government to release Nasheed and other jailed opposition leaders. Ex-defence ministers Mohamed Nazim and Tholhath Ibrahim Kaleyfaanu were jailed in March.

Sheikh Imran Abdulla, the president of the Adhaalath Party, is in police custody until a trial on terrorism charges concludes. Two senior Jumhooree Party (JP) officials have fled the country days before terrorism charges were filed. JP leader and MP Gasim Ibrahim has been abroad since late-April in the wake of sanctions on his businesses.

President Yameen, however, told Ban there are no political prisoners in the Maldives. Jailed opposition politicians were convicted of criminal offences, he said.

He assured Ban that the government has opened doors for Nasheed’s Maldivian Democratic Party (MDP) to sit for talks without conditions, the foreign ministry statement said.

However, the President’s Office has previously ruled out negotiations over Nasheed and Nazim’s release and rejected representatives put forth by MDP and the religious conservative Adhaalath Party i.e. Nasheed and Imran, on the grounds that they are serving jail sentences or in police custody.

Discussions with Gasim’s JP, however, are ongoing.

President Yameen also told Ban he had rejected Nasheed’s appeal for clemency and asked the opposition leader to first exhaust all appeal processes.

Nasheed maintains the criminal court has blocked him from filing an appeal by failing to provide required court documents within the 10-day appeal period. Lawyers say the law is silent on late appeals and that there is now no mechanism to file an appeal.

The government, however, insists Nasheed can still appeal.

A New-Delhi based advocacy NGO, the Asian Center for Human Rights (ACHR), has meanwhile reiterated a call on the UN Human Rights Council to adopt a resolution on the deteriorating human rights situation in the Maldives in its ongoing session.

The NGO, which has special consultative status with the UN Economic and Social Council, on June 16 urged the UNHRC to appoint a Special Rapporteur on the human rights situation in the Maldives and to suspend the Maldives from the council.

The Maldives was first elected to the council in 2010 and re-elected for a second term in November 2013.

The ACHR said President Yameen has taken more draconian measures since its June 16 statement. It noted the Supreme Court had ruled a Human Rights Commission of the Maldives (HRCM) report to the UN unlawful and issued a 11-point guideline on the watchdog.

“The president of the UN Human Rights Council and the UN Human Rights Council ought to take necessary measures against such reprisals for cooperating with the United Nations human rights mechanisms,” the statement saud.

No other Supreme Court in the world has passed such restrictions on national human rights watchdogs for cooperating with the UN, the NGO said.

The ACHR also blamed government’s economic sanctions for Gasim’s announcement he will retire from politics and censured the government for hiring a UK based private law firm, chaired by Cherie Blair, the wife of ex-UK PM Tony Blair, to strengthen democracy consolidation.

“That the government of Maldives decided to hire a private law firm rather than seeking support of the United Nations for democratic reforms once again shows that President Yameen is not committed to democratic reform,” the ACHR said.

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