Maldives: Judiciary under the President's thumb
The United Nations Special Rapporteur on the independence of judges and lawyers, Leandro Despouy is undertaking a mission to the Maldives from 25 February to 1 March 2007 “to assist the authorities in implementing judicial reforms”. In March 2006, President Maumoon Abdul Gayoom announced the "Roadmap for the Reform Agenda". On 14 August 2006, President Gayoom while inaugurating the National Judicial Conference 2006 organised by the Ministry of Justice admitted that the judiciary of Maldives “lacks the confidence of the public”.
The justice system in Maldives has many flaws.
First, the justice system is based on Islamic law (Shari'ah). English common law is also applied but remains subordinate to Shari'ah.
Second, there is no separation of judiciary from the executive. The President is also the head of the judiciary with the powers to grant pardons and amnesties, and to appoint and dismiss the judges on his own caprice.
Third, there is lack of competent lawyers and judges.
The reform measures undertaken by the government have been half-hearted. Instances of arbitrary arrests, detention, torture, denial of access to lawyers, trial in kangaroo courts and summary conviction of opposition political activists, journalists and other pro-democracy activists have continued unabated. President Gayoom while inaugurating the National Judicial Conference also stressed that the judiciary in Maldives should “aspire to adhere to international best practices and standards.”
United Nations Special Rapporteur, Leandro Despouy, will not only assess the judicial reform measures undertaken so far, but will also make specific recommendations as per with what President Gayoom lectured at the National Judicial Council – “international best practices and standards”.
It remains to be seen whether President Gayoom will implement the recommendations of the Special Rapporteur or dump the report like the study done by Professor Paul Robinson, a distinguished professor of law at the University of Pennsylvania Law School in 2004 as a part of President Gayoom's reform proposals.
President Gayoom has miserably failed on the political reforms. Is he serious about the judicial reforms? The report of the Special Rapporteur will testify.
On 24 July 2004, Professor Paul Robinson, a distinguished professor of law at the University of Pennsylvania Law School, submitted his study report titled “Report on the Criminal Justice System of the Republic of Maldives: Proposals for Reform”, which was prepared at the request of the Maldivian Government for the United Nations Development Programme (UNDP) as part of President Gayoom's reform proposals.
Professor Robinson found that “Maldivian criminal justice system systematically fails to do justice and regularly does injustice, that the reforms needed are wide-ranging, and that without dramatic change the system and its public reputation are likely to deteriorate further.”
In his 17-page report, Prof Robinson found 65 areas where the Maldivian criminal justice system was severely lacking. Some of the key findings of Prof. Robinson are given below:
- No separation of the judiciary from the executive;
- Limited knowledge and training among the judges on law and Shari'ah;
- Absence of a comprehensive Police Act that would set out specific rules governing the authority and procedures of police, including the powers and limitations of police to question, arrest, detain, search, and seize;
- Need to reduce over reliance on confessions as the basis for establishing criminal liability. The investigators should recognize a right of suspects to remain silent during investigation;
- Lack of published criminal procedural rules “governing the operation of courts in adjudicating criminal cases, including rules of evidence to govern the introduction and implications of evidence during trials;”
- Lack of the right of the defendants to access counsel at all stages, including during questioning of a suspect in police custody;
- Lack of effective representation of defendants by counsels, including the right to private consultation and to “directly examine witnesses in court” by the counsels;
- Absence of pre-trial release of defendants on bail;
- Need for speedy trial rules, especially if the accused is held in custody;
- Absence of published rules by which a trial is to be conducted;
- Need to do away with the “present practice of conducting a trial in a series of short hearings” and the trial proceedings must be uninterrupted until complete;
- Attorney General should be the sole prosecution authority and the prosecution decisions of AG “should be made free of political influence and should be based solely upon the demands of justice and uniformity in application”;
- Need to have centralized judicial authority in Chief Justice or Supreme Court. The Supreme Court should be the explicit authority to render interpretations of law that are binding on all;
- Absence of comprehensive criminal code. Prof. Robinson suggested that the primary goal of the criminal code should be to “doing justice”;
- Absence of the practice of grading of offences according to the seriousness of their violation;
- Absence of sentencing guidelines. Prof Robinson suggested that “The sentencing of criminal offenders ought to be guided in some way to insure uniformity in application (the sentence ought to depend upon the crime and the offender, not upon the selection of sentencing judge)”;
- Prof Robinson expressed serious concern over the state of prison condition and called for regular monitoring and special training for the prison guards and officers.
Findings of Sir Ivan Lawrence QC and his team
In September 2005, a four-member delegation of British barristers led by Sir Ivan Lawrence QC went to Maldives to assess the Maldivian judicial system. In a press conference on 28 September 2005 in Male, the delegation made their findings public. The delegation said the Maldives did not comply with international standards and pointed out the following five key flaws in the country's justice system:
- Lack of awareness among the authorities about the internationally human rights standards;
- Lack of separation of the executive and the judiciary;
- Lack of competence among lawyers to protect the interests of the individual accused of crime;
- Lack of independence of the legal profession from government; and
- Lack of proper body of law and procedure governing criminal trials.
The major areas of concern for the reform of judiciary are:
Lack of independence of judiciary from the executive is the main concern in the Maldives. The Constitution of Maldives provides that “The President shall be the highest authority of administering justice in the Maldives” with the power “to grant pardon to persons convicted of offences and to commute sentences of such persons”.
The High Court and the lower courts function under the Ministry of Justice. The judges must be Muslims. There is no jury system of trial.
All the judges of the High Court, the highest court in the country, and the lower courts are appointed and can be dismissed by the President. The 1995 presidential decree gives power to a five-member advisory council appointed by the President to review the high court's decisions. The High Court serves as court of appeal, and ultimate appeal lies with the President. Therefore, there is no independence of judiciary in Maldives.
In the “Report on the Criminal Justice System of the Republic of Maldives: Proposals for Reform” of 24 July 2004, Prof. Robinson stated that “There seems to be nearly universal agreement by all parties outside of the judiciary that the current level of judicial competency is inadequate or worse.”
The situation remains the same.
The lack of proportionality between crime and punishment is a serious problem. The primary reasons for this are politically motivated trial and lack of proper knowledge and training among the judges on English common law and Shari'ah law.
That anybody who opposes President Gayoom's regime would be sentenced to imprisonment is a foregone conclusion. Very rarely one who is arrested has a chance to be acquitted in the court. Dozens of activists of opposition Maldivian Democratic Party, pro-democracy supporters and journalists have been arbitrarily arrested and sentenced under “summary justice”.
The quantum of the sentence often depends upon the trial judge rather than the seriousness of the crime committed by the accused. Often, the sentences passed are highly disproportionate to the crime for which the accused has been tried.
On 2 October 2005, Abdulla Alexander, Abdulla Shabir and Ahmad Moosa were charged for committing acts of terrorism for participating in a mass protest in September 2003 and sentenced to 11 years in jail. Another pro-democracy activist, Ikleel Ibrahim was given 10 years sentence.
On 18 October 2005, Ms Jennifer Latheef, Councilor and Human Rights Coordinator of Maldivian Democratic Party, was sentenced to ten years imprisonment by the trial court on the charges of terrorism for allegedly throwing a stone at a policeman during a protest rally in September 2003. There was no evidence to suggest that Ms Latheef was involved in any violent activity and the statements of the witnesses, six of whom were police officers, contradicted with each other. But the Judge Fahmy of the Criminal Court completely ignored such inconsistencies saying that given the ‘lapse of time' between police statements and court hearing the contradictions were insignificant and sentenced Ms Latheef to 10 years in jail. Even if she did throw a stone, the crime surely does not warrant such a harsh punishment by any international standard. Ms Latheef has since been released.
On 19 April 2006, Abdulla Saeed (Fahala), a journalist with Minivan Daily, was sentenced to life imprisonment on alleged drug charges. On 13 October 2005, he was summoned to the police headquarters in Male without giving any reason and arrested on the charges of possessing drugs. He was released on 2 December 2005 but continued to appear in the court for trial until he was handed over a life term on 19 April 2006.
Article 15 (d) provides that “No person charged with an offence shall be kept in detention for a period exceeding seven days except as provided by law.”
However, the undertrials are often detained for a long period of time without any trial.
During a visit to Dhoonidhoo jail on 9 March 2005, a delegation of the Human Rights Commission of Maldives found that a total of 11 people were detained for a period between 43 and 201 days. There was 1 person detained for 39 days, 2 people for 25 days, 1 person for 14 days, 4 people for 9 days, 1 person for 5 days without being questioned even once.
Mohamed Nasheed alias Anni, Chairperson of the Maldivian Democratic Party (MDP), was arrested from the Republican Square in Male on 12 August 2005. Nasheed was charged with terrorism under Article 6(b) with reference to Article 2 (g) of Law No. 10/90 i.e. Law on the Prevention of Terrorism in the Maldives and sedition under Article 29 of the Penal Code and held at Dhoonidhoo Detention Centre. On 1 November 2005, he was placed under house arrest in Male. He was released from house arrest on 21 September 2006 as part of the Westminister House Agreement reached between the Government of Maldives and the Opposition MDP in Colombo.
Minivan Daily's sub editor, Nazim Sattar is currently facing trial for “disobedience to order” over an article that appeared in Minivan Daily on 2 August 2005. On 17 January 2007, the trial of Nazim Sattar was postponed and no date for next hearing was given.
Minivan Daily journalist Mohamed Yooshau was arrested on 9 April 2006 in Gaaf Dhaal, Thinadhoo prior to an opposition protest. He was initially charged with “terrorism” but the charge was later reduced to “disobedience to order” under the Penal Code for allegedly thumping his fist on the Atoll Chief's desk on 25 January 2006. He was released from police custody on 24 July 2006 following the Westminster House Agreement between the Maldivian Democratic Party and the government of Maldives, but was summoned to court again on 12 December 2006 and the trial continues.
Article 16 of the Constitution of Maldives provides that “Every person shall be presumed innocent until proven guilty” and he/she shall have the right to “obtain the assistance of a lawyer whenever such assistance is required”.
On 1 April 2004, the regulation on access to legal aid was amended. The amended regulation provides that a person shall be notified of his/her right to a lawyer upon his/her arrest, the suspect has the right to have his/her lawyer present during questioning and the suspect has the right to consult his lawyer in private at any stage and also prior to signing any statement. But many undertrials are continued to be denied access to lawyers.
Prof. Paul Robinson in “Report on the Criminal Justice System of the Republic of Maldives: Proposals for Reform” of 24 July 2004 found that “This practice has recently been begun, although it appears that defense counsel are not always permitted to consult with their clients in private.”
On 30 May 2006, nine political detainees belonging to Maldivian Democratic Party identified as Abdul Hakeem Ibrahim (M. Miriyaz), Mohamed Hameed (H. Vinolia), Mariyam Rahma (M. Azadeegulshan), Shafeega Ahmed (MA. Afalge), Mohamed Muaz (MA. Dhiggaru Hulhangubai), Ahmed Hassan (Lunboamage/Lh. Hinnavaru), Aishath Sherin (MA. Boalhakinkirimage), Mohamed Ziyad (M. Saljamge) and Ahmed Hameed (Radiaumge/N. Velidhoo) were produced in the criminal court in Male'. They were arrested on the charges of participation in an ‘unlawful assembly' during the protest on 14 and 15 May 2006. The judge gave Shafeega Ahmed, Mariyam Rahma, Abdul Hakeem Ibrahim, Mohamed Muaz, and Ahmed Hassan three days' time to obtain lawyers. However, Mohamed Hameed was denied the right to legal representation on the ground that his request came ‘too late'. Earlier, eight political detainees have already been sent to jail in trials in which they were allegedly not permitted to mount a defense.
Article 15 1(b) of the Maldivian Constitution guarantees that “No person shall be arrested or detained except as provided by law. No person shall be detained for a period exceeding twenty-four hours without being informed of the grounds of arrest or detention.”
There is no provision in the constitution of Maldives to recognize “habeas corpus” though Article 15 (2) provides that Maldivian citizens have the right to appeal against “oppressive treatment” to the concerned authorities and to the President.
There is no specific legislation in the Maldives that gives the Maldives Police Service the power of arrest, search and seizure. In the absence of any such legislation the Maldives Police Service derives power of arrest from a general Act of parliament. Section 6 of General Laws enacted on 11 November 1968 (Law No. 4/68-Javiyani) states:
“In the event a person is suspected of contravening orders of the Shari'ah or the State, or a person is deemed unfit to be left at large owing to him or her being suspected of creating a danger to the public, the discretion to arrest that person, without causing any harm to him or her, is vested in the Ministry of Defence and National Security, the Ministry of Home Affairs in Malé, and the Ministry of Atolls Administration in the atolls”
A regulation defining arrestable and non-arrestable offences known as “Arrestable and Non- Arrestable Offences Regulation” was enacted in February 2004 and came into effect from 1 March 2004. The list of arrestable offences includes offences against the State and actions that affect the general peace and harmony which have been used for political purposes.
Moreover, the judges in Maldives cannot determine the nature of the offences.
On 1 June 2005, the government introduced a bail system. Bail is granted on the conditions that his/her release do not affect the community or endangers life or property, his/her release does not affect the evidence of the case, and his/her release does not result in his/her fleeing the country.
The bail system is flawed. First, the bail conditions are set by the police, not the courts. Second, the bond or surety demanded for release on bail sometimes is as high as 35,000 Rufiah, which is not affordable by common Maldivians.
Confessional statements are considered inadmissible before the court of law in any civilized society for the simple reason that they can be extracted under duress. But in Maldives, the courts heavily rely on confessions of the suspects.
This is despite the fact that torture during interrogation is very high in Maldives. There is lack of other forms of evidence-gathering, including the development of forensic and other scientific investigative skills. The investigators also do not recognize the right of suspects to remain silent during investigation.
The government claims that recording of all interviews/ interrogation of detainees was started on 1 April 2004. But this is not true. Besides absence of recording of interviews/interrogation, the detainees are not allowed to have access to their lawyer during interrogation. The government admitted that 97% of cases in 2003 and 64% of the case in 2004 were based on confessional statements of the accused.
The Attorney General of Maldives claimed before Benedict Rogers, the Deputy Chairman of the Conservative Party Human Rights Commission during his visit to Maldives in June 2006 that 91% of cases in 2005 did not involve confessional statements.
However, in the high profile trial of MDP leader Ms Jennifer Latheef, the trial judge convicted and sentenced her to 10 years in prison in October 2005 based on her alleged confessional statement given to the police and on the basis of some undated photographs of her taken by an anonymous photographer. Such conviction is clearly in violation of basic norms of international law. The pictures taken of Latheef did not establish the time, place or event, and showed Latheef doing nothing incriminating in anyway. Neither did the concerned photographer appear before the court to defend the authenticity of the photographs.
Maldives signed the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on 23 February 2004 and its Optional Protocol on 14 September 2005.
But torture by the security forces is widespread as they seek to extract confession.
Torture to death of Muaviath Mahmood
Muaviath Mahmood who was arrested along with Fathimath Suzana, Ahmed Zuhoor and Shamoon Rasheed on alleged drug offences on 4 March 2005 died on 9 March 2005 at Dhoonidhoo jail allegedly because of torture in police custody. Mahmood's father lodged a complaint with the Human Rights Commission of Maldives (HRCM) alleging that he had seen traces of maltreatment on the body of his son. Police summoned Mahmood's father twice on 24 and 25 March 2005 for lodging the complaint. Co-accused and co-detainee Ahmed Zuhoor and Samoon Rasheed in their written statements before the HRCM submitted on 28 March 2005 corroborated that Muaviath Mahmood was tortured to death.
Torture of Ahmed Zuhoor
On 4 March 2005, Ahmed Zuhoor was arrested along with Muaviath Mahmood, Fathimath Suzana and Shamoon Rasheed on the charges of drug offences and was taken to Dhoonidhoo for investigation.
Ahmed Zuhoor alleged that the police wrung his arms backwards and clipped them together, hung him up and physically abused him severely during the investigation. One of his legs reportedly started getting numb due to police torture while he was in Dhoonihdoo Detention Centre. He had to be admitted to Indira Gandhi Memorial Hospital on 13 and 15 April 2005 following a physical assault by police officers on 4 April 2005. He was taken back to Dhoonidhoo Detention Centre on 15 April 2005 and kept in solitary confinement until his release without charge on 24 May 2005.
Torture of Shamoon Rasheed
On 4 March 2005, Shamoon Rasheed was arrested on alleged drug abuse charges. He complained to the Human Rights Commission of the Maldives that police “kicked and punched” him while conducting his investigation and forced him to sign a confessional statement admitting that he used and sold narcotics. But the authorities did not investigate the case of detainee being maltreated by police. He was transferred to house arrest from Dhoonidhoo Detention Centre in mid June 2005 after more than 3 months in detention without charge. On 21 June 2005, the Criminal Court convicted him of theft on lawsuit pending at the court prior to detainee's arrest on 4 March 2005 (lawsuit number 133/JC/2005) and sentenced him for 1 year banishment. He was transferred in late June 2005 to Kolamaafushi island in Gaaf Daal Atoll to serve his sentence.
Torture of Ibrahim Mohamed
On 7 March 2005 at about 10 pm, Ibrahim Mohamed was arrested for alleged possession of drugs while he was at work at the Maldives Ports Authority (MPA). On 12 March 2005, he was brought to Male after having sustained serious injuries at the hands of Police interrogators and was hospitalized at the Indira Gandhi Memorial Hospital through a friend at approximately 1000hrs. Ibrahim Mohammed alleged that policemen running from a distance gave flying kicks at his chest and stomach, hit his head with chairs, banged his head against walls, pulled his hair and hit him on the chest with elbows, among other things. He reportedly had several visible bruises, swelling and wounds, including cuff marks, bruises on his neck as a result of strangling and bruises on his back, arms, chest, stomach and knees. He was initially brought to the hospital because he was bleeding excessively from his genitals and anus. Wife of Mohamed also stated that the detainee was unable to eat and vomited after consuming any food.
Torture of Mohamed Shameen
On 20 June 2006, a prisoner identified as Mohamed Shameen, aged 22, was brutally beaten up by a policeman at penitentiary block no. 373 in Male'. Shameen was taken to the Indira Gandhi Memorial Hospital the next morning. He was handcuffed while in the hospital and allegedly beaten again while on the way back to the penitentiary block.
The government of Maldives has been misusing the country's draconian defamation law to silence the critics.
Under the Penal Code of Maldives, defamation is a criminal offence. On 21 January 2007, the government of Maldives adopted the Defamation Act which penalizes Rf. 5,000 against any newspaper to the defamed party. The government claimed that the Defamation Act will improve the quality of reporting in the country and provide “the right to the protection of the law against unlawful attacks on a person's honour and reputation”. But in reality, this law is nothing but a tool to further suppress the freedom of expression and the right to dissent in Maldives.
Under the Defamation Act, defamation has been defined vaguely and in broadest terms to include “honour” or “reputation” of a person whether living or dead or such person's family members. A defamatory statement has been defined as “a statement made … by a person using spoken words, written words, sounds, printed words, gesture, signs or bodily movement which portrays, may be interpreted or conveys a defamatory message”. Going by this definition, it is conclusive that the law will be misused as a blanket cover against any criticism of the misdeeds or misrule of the government authorities, and virtual ban any kind of reporting about maladministration.
Many journalists have been victims of continued harassment and intimidation by the State for writing or publishing articles expressing dissent. On 27 November 2006, the editor of Sandhaanu Magazine, Mohamed Rilwan, was summoned to Male police station for publishing an article by a contributor which appeared in the 33rd edition of the publication that referred to President Gayoom as a “despot.” Mohamed Rilwan was questioned about the author of the article.
In his 31-point proposals for Constitutional Amendment submitted to the People's Special Majlis on 14 February 2005, President Gayoom proposed to “divest the presidency of its role as the head of the judiciary”. He also proposed to set up an independent judiciary with a Supreme Court headed by the Chief Justice. But the drafting of a new constitution is not making substantive progress. Consequently, no measures have been undertaken to establish a Supreme Court.
On 11 November 2005, the government announced separation of the judiciary from the executive. The government established a Judicial Service Commission to strengthen the judicial system, increase independence and fairness. The Judicial Service Commission has the mandate to advise the President on the appointment and removal of the judges and the members of the Presidential Advisory Council on Judicial Matters, to advise the appropriate authority on setting the behavioural standards of judges, and to recommend to appropriate authority on measures to be taken upon investigation of issues regarding the judges. The Commission is composed 10 members - 4 members from the judiciary appointed by the Chief Justice, 2 members from the executive, 2 members from the legal profession appointed based on their education and experience, and 2 members from the general public, who are not working in the government.
However, the Judicial Service Commission cannot ensure independence of judiciary as the President has the power to appoint and dismiss its members.
On 22 November 2005, the opposition Maldivian Democratic Party (MDP) alleged that all the ten members of the JSC were President Gayoom's cronies. They included the Chief Justice and three other judges appointed by President Gayoom, the Attorney-General, and the Minister of Justice, and four other members appointed by the President.
It appears that instead of granting independence to the judiciary, President Gayoom has been trying to gain legitimacy by making the judiciary subservient to the Office of the President.
Moreover, when the President serves as the head of the State and the head of the judiciary, how can the judiciary be termed as “independent”?
 . Gayoom Admits Judiciary “Lacks Public Confidence”, Minivan News, 15 August 2006
. Sir Ivan Lawrence QC delegation finds five key flaws in
the Maldivian justice system, available at http://www.minivannews.com
. Article 39 of the Constitution of Maldives
. Article 40 of the Constitution of Maldives
. Annual Report 2005 of Human Rights Commission of Maldives, available at
. Opposition Leader Mohamed Nasheed (Anni) Placed Under House in Male',
Minivan News, 1 November 2005
. More Detainees Denied Legal Representation, Minivan News, 31 May 2006
. Report on a visit to the Maldives by Benedict Rogers, Deputy Chairman,
the Conservative Party Human Rights Commission during 7-10 June 2006, available at
. Report on a visit to the Maldives by Benedict Rogers, Deputy Chairman,
the Conservative Party Human Rights Commission during 7-10 June 2006, available at
. http://www.maldiviandetainees. net/individuals/148Muaviath.htm
. An English version of Ahmed Zuhoor's statement to HRCM is available at
. Emails communications to Asian Centre for Human Rights
. More Allegations Of Police Brutality, Minivan News, 22 June 2006
. Judicial Services Commission a ‘whitewash' says MDP,
Minivan News, 22 November 2005, available at