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ACCESS TO JUSTICE IN MALDIVES

Through the Eyes of a Colourless Lens

Naaz Aminath

Copyright and Acknowledgements Copyright 2013 Naaz Aminath All Rights Reserved. The document or extracts from this publication may, however, be freely reviewed, quoted, reproduced or translated in part or in full, provided the source is given due acknowledgement. The views expressed in this publication are those of the author. Published by Naaz Aminath Lead Researcher and Author: Naaz Aminath (LLB, GDLP, LLM) From 2010 to 2012 Naaz was the Protecting Human Rights and Access to Justice Project Programme Specialist as well as the Project Manager with UNDP Maldives. She is a practicing lawyer in Australia and has been in the legal field for over 12 years. Copyedited by Maaeesha Saeed and Aishath Rizna Photos by Naaz Aminath Designed by Ismail Sodique First published in April 2013

Access to Justice in Maldives


Through the Eyes of a Colourless Lens
by Naaz Aminath

Access to Justice in Maldives: Through the Eyes of a Colourless Lens

Contents
Foreword 5 Chapter 1: Introduction 1.1 The Green Constitution 6 1.2 The Parliament 6 1.3 The Judiciary 6 1.4 The Judicial Services Commission (JSC) 7 Chapter 2: Calling the Pot Black 2.1 The Reform Constitution 8 2.2 The 285 Judges 9 Capacity of judiciary 9 2.3 The Divine Powers Supreme Court 9 2.4 The Dysfunctional JSC10 Inside JSC 11 2.5 The Unscrupulous Parliament11 2.6 All in the Name of Divine Law13 (a) Death penalty for murder13 (b) Interpretation of application of Islamic Shariah law 14 (c) Prescribed Hadd crimes 14 (d) Attempted suicide 15 2.7 The Feeble and Ineffective Justice System15 Chapter 3: Future of Maldives 3.1 Geography18 3.2 Access to Justice and Population Consolidation19 Chapter 4: Appendix 4.1 List of 93 Islands Visited 21 4.2 Photographs22

Access to Justice in Maldives: Through the Eyes of a Colourless Lens

Foreword
It is far too easy to keep blaming one another without finding a long-term solution. Over the past years, we have heard and seen various allegations, accusations, assessments and recommendations with regards to access to justice in Maldives. Often we hear leaders and institutions blaming one another and avoid speaking about the real issues. There is very limited awareness and understanding of the new concepts that have been so rapidly introduced to the country, not only among the public but also among the policy makers and technical personnel in the government and state bodies themselves. With the new found rights under the constitution, the citizens are more vocal in talking about the issues as individual characters rather than the actual system or solutions. Politics in Maldives means character assassination only. In a population of 350,000 there are 15 registered political parties[1] with no real ideologies. Some claim to be conservatives or liberal but their actions are somewhat opposite of their said ideologies. Over the years, Maldives received numerous grants and funds from multinational organisations and international donors for various development purposes. The Government of Maldives have spent billions of funds in building mosques, schools, hospitals, flats and harbours for the development of Maldives; yet we see the capital Mal becoming populous day by day while the Atolls are scarce with less than adequate facilities. This deficiency in development and lack of access to justice creates inequality and injustice while giving an advantage to politicians to buy their ideas rather than sell it. The main purpose of this publication is to provide an insight into the issues and shortcomings of access to justice from an individual who has had the privilege of working in Maldives, especially within the justice sector. Rather than providing recommendations to strengthen each institution the publication will introduce the idea of a long term solution for the betterment of Maldives. This publication is by no means exhaustive. However given that there is a fast approaching presidential election, I hope that my experiences and opinions expressed will serve as a foundation on which public dialogue and program activities will build for a better future for Maldives.

1 As at 1 January 2013, see www.elections.gov.mv 1.Dhivehi Rayyithunge Party, 2.Maldives Democratic Party, 3.Progressive Party of Maldives, 4.Peoples Alliance, 5.Dhivehi Qaumee Party, 6.Adaalath Party, 7.Social Liberal Party, 8.Gaumee Ittihaad, 9.Islamic Democratic Party, 10.Maldives National Congress, 11.Maldives Labour Party, 12.Jumhooree Party, 13.Social Democratic Party, 14.Peoples Party, 15.Maldives Reform Movement

Access to Justice in Maldives: Through the Eyes of a Colourless Lens

Chapter Introduction 1

1.1 The Green Constitution


For the first time in Maldives, the 2008 Constitution adopted the principle of separation of powers and most importantly, demonstrated the countrys progress towards upholding the rule of law and democratic principles. The new Constitution paved the way for the first multiparty Presidential election, introduced a bill of rights, a fully elected Parliament and an independent judiciary with the establishment of a Supreme Court as well as establishment of independent institutions such as the Prosecutor General Office, Anti-Corruption Commission, Elections Commission and Police Integrity Commission.

1.2 The Parliament


As per the 2008 constitution the legislative power is vested within parliament. On 10 February 2009, the Parliament voted to pass the Parliamentary Constituencies Bill, which the President signed into law later that day. In accordance with this new Act, each administrative atolls population determined how many electoral constituencies would be created, which resulted in 77 elected members from 21 administrative divisions for a population of 350,000. The current parliament was instated on 28 May 2009 for a term of 5 years. The quorum of a sitting of the parliament is 25 percent of its members. If anytime during a sitting of the Parliament, quorum is lost; such sittings are then adjourned or suspended until quorum is met.

1.3 The Judiciary


Prior to the enactment of the new Constitution on 7 August 2008, the President of Maldives was the highest authority for the administration of justice in the Maldives. The court structure was such that the first instance courts were the Island Courts which was distributed among the 198 inhabited islands. The specialised courts in Mal are composed of the Civil Court, the Criminal Court, the Family Court, the Juvenile Court and the Drug Court. Prior to August 2008, the High Court was the only court of appeal in the Maldives. The then Ministry of Justice (now known as Department of Judicial Administration (DJA)) was responsible for the administration affairs of the judiciary. Following the enactment of the new Constitution, majority of the functions carried out by the former Ministry of Justice were mandated to the newly formed DJA in October 2008. DJAs mandate includes conducting training programs, providing technological assistance to the courts, construction and maintenance of buildings for the judiciary and other administrative tasks. In September 2008, the Interim Supreme Court was named and began its functions. As of 2008 the structure of the Maldives judiciary is as follows: 1. Supreme Court- The highest authority for the administration of justice in the Maldives. Its constitutional mandate is to protect the fundamental rights of all citizens, to resolve legal disputes in a fair and transparent manner and to ensure justice through an independent, honest, and effective judicial system. There are 7 sitting justices in the Supreme Court. 2. High Court - If a ruling of a lower court has been appealed to the High Court, the High Court has the power to review the decision of the lower court to determine the constitutional and legal validity of the 6

Chapter 1 Introduction

decision. The High Court also has the jurisdiction to inquire into and rule on the constitutional validity of any or part of a Law. The High Court comprises of 9 judges. 3. The subordinate courts of the Maldives are the five superior courts, which are based in Mal and the magistrate courts in each inhabited island. The five superior courts situated in Male are: the Civil Court (8 judges), the Criminal Court (7 judges), the Family Court (4 judges), the Juvenile Court (2 judges) and the Drug Court (5 judges).[2] 4. Magistrate courts are located in each inhabited island. Presently there are 133 sitting Magistrates in the country.[3] Magistrates courts are established to complement the statutory requirement of having one court in each inhabited island, but not necessarily a magistrate in each court.

1.4 The Judicial Services Commission (JSC)


In September 2008, the interim Judicial Services Commission (JSC) under the 2008 Constitution began its duties. The interim JSC also recommended names to the President for appointment of an interim Supreme Court and appointed a Chief Judicial Administrator. On 26 July 2009, the permanent JSC was constituted by the Parliament as provided by the Constitution. As per Article 158 of the Constitution the Commission consists of 10 members as constituted by the President of Maldives (Art 160).

2 As at 31 December 2012 3 As at 31 March 2013, see jsc.gov.mv/jlist/index.html

Access to Justice in Maldives: Through the Eyes of a Colourless Lens

Chapter

Calling the Pot Black

2.1 The Reform Constitution


Despite the enthusiasm to bring the new constitution to existence, since its adoption, the Constitution remains the most abused document in Maldives. To name a few; 1. Article 296 of the 2008 Constitution stipulated that Parliamentary Elections be held before 15 February 2009. When the Supreme Court ruled[4] that the 15 February 2009 deadline should be honoured, the Executive disregarded the ruling and MPs from the ruling party ridiculed the Supreme Court Justices on the parliamentary floor. There was also an extensive smear campaign against the Supreme Court Justices on the government-controlled national broadcasters. Parliament elections were held on 9 May 2009 and the first meeting was held on 28 May 2009. Does this mean Parliament is established unconstitutionally and the appointments of Parliamentarians are void? 2. Similarly as per Article 298 of the Constitution, the local council election was supposed to be held before 1 July 2009, however, the election was held on 5 February 2011. Does this mean the councilors are appointed unconstitutionally? 3. Ironically even the presidential election was not concluded as per Article 301 of the Constitution in 2008. However the validity was referred to the then High Court and the High Court declared the election valid. 4. In 2010 the Executive held two MPs on arbitrary arrest with the assistance from the police services. The Supreme Court declared that the arrest was unconstitutional. 5. The Executive declared the interim Supreme Court defunct at the end of the interim period and ordered armed forces to physically lock down the Court and a special envoy to the Executive remained in charge of Supreme Court in 2010 until the permanent Supreme Court was established. In 2011 the Executive publicly defied all court orders and declared courts unconstitutional and continued to intimidate the Judiciary. The Constitution guarantees the separation of powers which demonstrates that the Judiciary is to be free from any influence or pressure from any other institution of the State.[5] No person or organ of the State (government department or institution performing within the limits of the Constitution or exercising public power) may interfere with the functioning of the courts. 6. In January 2012 the Executive held a judge on arbitrary arrest with the assistance from the armed forces, once again breaching several articles of the Constitution. In a good democracy power is never exercised without accountability for it. This applies to the three arms of the State!

4 Case No: 2009/SC-C/02 5 Article 141 and 142 of the Constitution

Chapter 2 Calling the Pot Black

2.2 The 285 Judges


As per Article 149 of the Constitution, amongst the qualification of Judges are A person appointed as a judge in accordance with the law As per Article 285: Continuation of Judges

The Judicial Services Commission shall determine whether or not the judges in office prior to 7 August 2010, possess the qualification of judges specified in Article 149. Article 285 of the Constitution requires judges to be appointed before 7 August 2010. As per Article 285, 5 High Court Justices, (2 of whom were later appointed to the permanent Supreme Court Bench) and Lower Court judges took oath on 5 August 2010, two days prior to the constitutional deadline. When judges were appointed on 5 August 2010, the Judges Act had not been passed by the Parliament. Therefore in the absence of the Judges Act, the JSC construed the law stated in Art 149 of the Constitution to be taken as the JSC Act whereby JSC made a regulation under the JSC Act and appointed judges under the criteria stipulated therein to avoid a constitutional void. On 10 August 2010, Judges Act was passed, ratified, gazetted and amended on the same day. The Judicature Act (act dealing with the number of courts and number of judges per court) was passed in October 2010. The Judges Act stated that existing judges (as of 10 August 2010) will remain in office but also gave a mechanism to standardise the Judiciary (7 years to obtain the minimum requirement where necessary, as well as the performance requirement where JSC could make recommendations to remove a judge based on performance and conduct.). Neither the Judges Act nor the Judicature Act requires judges to take oath again. It should be noted that 6 judges who were deemed unfit for the bench under the JSC criteria (and hence did not take oath on 5 August 2010) were deemed fit as per the criteria stipulated in the Judges Act and subsequently took oath. This in effect means that the criteria accepted/endorsed by both Parliament and the Executive, is lower than that set by the JSC.

Capacity of judiciary
Through my experience working with the Maldives Judiciary for two years,[6] majority of the judges and magistrates are willing and capable of leading an independent judiciary despite the external influences and challenges. Eminent extensive capacity building is required for the Judiciary, although equally important is to ensure correct measures are put in place for transparency to avoid injustice and to put in place a mechanism to ensure disciplinary actions are taken against judicial officers who are the subject of unprofessionalism in a transparent and timely manner.

6 I was involved in training a total of 130 judges and magistrates on human rights and constitution across the Maldives

Access to Justice in Maldives: Through the Eyes of a Colourless Lens

2.3 The Divine Powers Supreme Court


On 10 August 2010, Justices and a Chief Justice were appointed to the permanent Supreme Court. The appointments were highly politicised by the Executive and the Parliament and as a result, the Supreme Court failed to uphold the rule of law in certain circumstances due to undue political influence. This is evident from their various Rulings, Circulars and decisions.[7] As per Article 143 of the Constitution, the Supreme Court and the High Court shall have jurisdiction to enquire into and rule on the constitutional validity of any statute or part thereof enacted by the Parliament. As per 143 (b) of the Constitution, the issue(s) must be submitted before them. Judicial review means reviewing laws enacted by the Parliament and decisions of the Executive (and executive action) to determine if they are valid under the Constitution. Deciding whether a law violates the Constitution is part of the Judiciarys job. This is the process of deciding what a law means and how it applies to a specific case. The Constitution does not specifically give the Supreme Court power of judicial review. The judicial branch can determine, on a case-by-case basis, whether laws have been made in pursuance of, or in carrying out, the Constitution. If Parliament passes a law of which a Court disapproves, the norm is that the Court cannot strike down the law on its own. Instead, it must wait until someone files an appropriate case to challenge the law. Likewise, the Court cannot express an official opinion on a question from another branch of the government. It can only speak through the opinions it issues in real cases. The Supreme Court can interpret any law unconstitutional in any matter before them. According to the Supreme Court, Article 143 means that they can delete a clause or even chapters of an Act enacted by the Parliament on its own accord without a case being submitted before them. For the Judiciary, having jurisdiction over all issues of a judicial nature and exclusive authority to decide issues submitted for its decision, is absolutely fundamental to the rule of law. That said however, Court cannot take the role of the Legislature by amending legislation on their own and declaring previous Circulars and Rulings prevalent over Acts enacted by the Parliament.[8] It would be unconstitutional to state that the Rulings and Circulars issued by the Supreme Court with no reference to a particular case would be the law of the nation. If the Supreme Court were to continue amending laws as they see fit, the question is what is the role of the Parliament? On the other hand, there are various other laws that are currently in place which have clear violations of the constitution however no actions have been taken by the Supreme Court

2.4 The Dysfunctional JSC


Since its establishment, the JSC failed to comply with the Constitution and other legislative requirements. In particular: In 2010 JSC members received allowances in breach of Article 164 of the Constitution. Anti-Corruption Commission (ACC) discontinued the allowances but failed to take any actions. Even Parliament did not take any action against the JSC members. In March 2011 JSC established a court in Hulhumal in contravention of the Judicature Act.

7 See the High Court appointment case and Addu City case. Both cases did not follow due procedures. 8 Interim Supreme Court Ruling - 2008/SC-RU/01 - deletion of clause 21 (e) of the JSC Act 2008; Supreme Court Ruling - 2011/SC-RU/02 - deletion of Chapter 8 and 9 to the Judicature Act

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Chapter 2 Calling the Pot Black

Due procedure was not followed in the High Court appointments nor with complaints before the Commission. After 4 years, JSC failed to pass the regulations as per JSC Act 21 (c).

Inside JSC
I was fortunate to sit at JSC meetings for three weeks and review files and complaints in 2010 and 2011. The fact that virtually no progress had been made in complaint-handling in 2010 and 2011 was alarming even though most complaints could have been dismissed at an early stage. A significant number of cases do not require investigating[9] and could be dealt with on the basis of the nature of the complaint made. Majority of complaints presented before the JSC were not about judicial misconduct but were complaints that included; the complainant lost his or her case and that they do not agree with the order/judgment, delays in fixing or hearing of cases, delays in delivery of judgments, a perception of bias, complaints of rudeness or insensitivity and lack of punctuality. Other complaints include, allegations of criminal conduct, allegations of a judge engaging in making political statements,[10] discriminatory political behaviour, providing false information to another court, refusing to sit (judge who went on strike) and a case of another judge deciding a case which had not been heard by him. After reviewing the complaints, none of these cases appeared to be of particular difficulty or complexity. However the process of complaint-handling at JSC is such that, no matter how ridiculous a complaint may be and irrespective of whether the complaint is clearly not within their jurisdiction, it goes to the Complaints Committee for assessment. The Complaints Committee then reviews all the material and then identify whether the complaint is justifiable or not and then make recommendation to the full Commission. The Commission then may take months or years to decide on the case. This process is no doubt time consuming and ineffective and hence could be one of the reasons why complainthandling procedures are non-functional. Without delving into details, from my experience with JSC, I am deeply disappointed and concerned to say that JSC is the most dysfunctional institution that I have experienced in my professional life. Without radical reform in its membership and transparent procedures, the administration of justice in Maldives remains under threat. Due to their failure to process complaints in a timely manner they are permitting the handful of judges who lack integrity to continue on the bench without any consequences while allowing the public to question the entire justice system. Despite the dysfunctional nature of JSC, can the Executive arbitrarily arrest a sitting judge for three weeks and defy the Constitution and court orders in the name of judicial reform?

2.5 The Unscrupulous Parliament


Since the commencement of this Parliament in 2009, the total number of Bills passed was 15 in 2009, 34 in 2010 and 17 bills in 2011.

9 Indeed this is recognized by Article 22 of the Judicial Services Commission Act which states that the Commission Has authority to refrain from investigation if(a) complaint (is) made without substantial reasons or ifdeemed to be of a nature where a complaint cannot be made. 10 The infamous Judge Abdullas comment

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Access to Justice in Maldives: Through the Eyes of a Colourless Lens

In 2009[11] according to the Parliament Watch report by Transparency Maldives, In the first session of Parliament, 20 MPs took casual leave of 38 days, 13 MPs were on leave for a total of 58 days, two MPs were on an official trip for five days, 22 MPs were absent for 35 sittings of Parliament Only 7 MPs attended all sittings of Parliament 23 MPs were absent for ten or more sittings of the 95 sittings of Parliament. Total number of sittings disrupted were 22 of the 95 sittings

In 2010[12] according to the Maldives Democracy Network report, Only 4 members attended all sittings of Parliament Only 3 sittings were held for more than 5 hours 49 sittings were for more than 3 hours but less than 5 hours 21 sittings were for less than 3 hours 6 sittings less than 2 hours 4 sittings less than I hour 5 sittings less than 30 minutes 2 sittings less than 10 minutes Loss quorum first session-17

In 2008, a list of more than 100 pieces of legislation was identified necessary to implement the Constitution. Few of these have been drafted and/or enacted. Key legislation in the list includes: the Penal Code,[13] Evidence Bill, Criminal Procedure Code, Civil Procedure Code and Prison and Parole Act. Moreover, the Political Parties Bill and the Public Enterprises Accountability Act have been identified as important pieces of legislation that should come into force without delay.[14] The Maldives penal system is in a state of disarray due to lack of a criminal and civil legislative framework. In 2010, Parliament promised to complete them by early 2011, however in 2011, Parliament was willing to take a shortcut with the Penal Code, Evidence Act and the Criminal Procedure Code. Bits and pieces as they saw fit from the three Bills were combined as the Sunset Bill. The Sunset Bill breached every article of Chapter 2 of the Constitution as well as all the international human rights conventions that Maldives is a party to. Fortunately the Sunset Bill was laid to rest and Parliaments focus in 2011 was the tax reform bills. In early 2011, once again parliament was disruptive and less productive as MPs were too busy playing musical chairs. Among the bills passed in 2011 was the tax bill which only took 86 days while the preschool bill took them 820 days.

11 http://www.transparencymaldives.org/uploads/page/file/Parliament%20watch.pdf 12 http://www.mvdemocracynetwork.org/wp-content/uploads/2012/06/PW-report.pdf 13 The draft Penal Code, which is intended to be one of the key legislative reforms, has been in the Parliament for discussion for over 4 years 14 As at 1 January 2013

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Chapter 2 Calling the Pot Black

Sadly, with such great powers and responsibilities, there is no minimum qualification required to become a member of the parliament. As a result, we are experiencing a paralysed arm of the state. Parliamentarians are the biggest critics of the Judiciary for their behaviour, remuneration and education while they themselves being the culprits. On numerous occasions, members of Parliament have been removed for disorderly conduct and yet no actions could be taken against them. Parliament refuses to pass the code of conduct that would prevent them from being free but yet pass a bill to receive additional tax payers money for the MPs. Similarly they also want to pass a bill with special privileges for MPs, which would mean there is no way of holding any MP accountable for anything. 2012 was the worst year in the history of the Maldives Parliament. MPs productivity, behaviour and disruptiveness went to a whole new dimension and yet they continue to hold their positions and get paid without any consequences. MPs are elected by the people and for the people. Since the instatement of the 77 members in 2009, they have failed to give considerations of national interest and public welfare and have failed to represent their constituencies. Do we really need 77 members for a population of 350000? Shouldnt lawmakers be upstanding citizens? Shouldnt they have a minimum qualification? After all they are the lawmakers of this country.

2.6 All in the Name of Divine Law


While the draft Penal Code is progressive in essence and can largely be considered in line with international human rights standards and best practices, the political impulse to align the Code with Shariah law poses considerable dilemmas. The draft Penal Code allows for the death penalty and public flogging as a form of punishment in certain crimes. Flogging is considered a cruel and inhuman punishment by the UN Convention against Torture (which the Maldives is party to). According to Article 54 of the Maldives Constitution, no person should be subject to torture, degrading or inhumane treatment. Religious conservatives react strongly against any suggestion that a literal interpretation of Shariah could be applied. However it is not uncommon that current Maldivian statutes deviate from strict interpretations of Islamic Shariah. For example, current Maldivian law does not punish theft with amputation of the offenders hand or apostasy with the death penalty. Maldives has practiced a moratorium on the death penalty for the last fifty years.

(a) Death penalty for murder


Current Maldivian law does not define liability for murder. Provision 88 (a) of the current Penal Code makes it an offense to disobey an order lawfully issued under judicial or legal authority. Provision 88 (d) states where such disobedience results in the death of a person, the offender shall be subjected to punishment prescribed by Shariah Law. Hence the current Maldivian law incorporates Shariah law by reference. As per the Clemency and Reduction Punishment legislation 2/2010, the President can reduce the death penalty to life time imprisonment,[15] however, the President cannot pardon anyone who receives the death penalty. On 21 December 2010, the plenary session of the UN General Assembly adopted a third resolution on a moratorium on the use of the death penalty. The resolution, which was adopted by 109 votes in favour, 41 against with 35 abstentions, reaffirms previous UN General Assembly resolutions 62/149 and 63/168. Maldives supported the resolution in 2010 and supported the call for a moratorium on the use of the death penalty.
15 see Section 21 of the Act

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Access to Justice in Maldives: Through the Eyes of a Colourless Lens

In March 2011 a member of the Parliament,[16] proposed the following amendment to the Clemency and Reduction Punishment legislation 2/ 2010. The amendment states: Section 21- if the Supreme Court decides on a sentence or a lower courts sentence was upheld by the Supreme Court, the sentence must be enforced.

The reasons proposed by the MP are as follows: 1. According to the current legislation, death penalty could be reduced to 25 years for life. 2. In accordance with Islamic Shariah, death penalty is not taking away someones life; rather its about giving life. For this reason death penalty should be the way the Islamic Shariah intended it. 3. Even more developed countries such as America carry out the death penalty. Therefore Maldives being a 100 percent Muslim country should practice the same. The debate is still pending in Parliament.

(b) Interpretation and application of Islamic Shariah law


During the course of the past three years in Maldives, I have had the pleasure of meeting with various Islamic scholars from all walks of life including judges, magistrates, lawyers, MPs. They all have varying interpretations. Most people are very liberal while others give me goose bumps when they provide their version of the interpretation. Generally speaking, the death penalty can be applied by a court to punish the most serious of crimes. However, it is important to note that one must be properly convicted in a court of law before the punishment can be meted out. The severity of the punishment requires that very strict standards must be met before conviction is issued. The State must not use the confession of the defendant to convict of an offense for which it seeks the penalty of death unless the defendant freely testifies in open court and under the advice of counsel, confessing to every element of the crime. Though Islam may recommend the death penalty, it would be un-Islamic to impose the death penalty in a context where errors are more likely to be made given that the death penalty is an irreversible punishment. Do we believe our criminal justice system is capable of a successful murder conviction beyond reasonable doubt?

(c) Prescribed Hadd crimes


In Maldives, in the name of Shariah law, there is grave unjust done. According to Shariah, for fornication or zina, you receive 100 lashes and 1 year banishment/house arrest. It is almost always that the female, whether under 18 or not, who receives the punishment for fornication or zina especially if the female falls pregnant. The female is then asked to explain in detail at the police station and in court how many times and how she committed the fornication. Most cases police do not even question the man involved whereas in some cases the man will simply say it wasnt me and walks scot-free. Several occasions I asked the police and the courts, why dont they bring the male for questioning and they responded he will say it wasnt me so no point.[17] In addition, once convicted of fornication or zina, the female is ridiculed in the society and receives a record of conviction for hadd crimes. This means she is banned for life of ever becoming a lawyer, a judge or the President in the Maldives despite receiving the prescribed punishment.
16 Mutthalib, MP 17 I visited several hearings in Mal and the atolls and inquired police on several investigation techniques

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Chapter 2 Calling the Pot Black

Conversely, pedophilia is not a prescribed hadd crime. Convicted pedophiles are welcome to do whatever they want including work with children once they have served their sentence because pedophilia does not fall under the so called prescribed hadd crimes. I guess according to Maldivian standards, being a convicted pedophile holds greater respect in the society than committing fornication!

(d) Attempted suicide


In Maldives, attempted suicide means not obeying the law (section 88 (a) of the 1968 Penal Code). In some cases, police have simply given a slap on the wrist, other times they have tried the person in court and have received MRF150.00 fine. Interestingly, I once met a female in prison who had a past criminal history (four times convicted of fornication). She was serving four months imprisonment for the attempted suicide. I believe the spirit of Islam is to save lives, promote justice and prevent corruption and tyranny. Therefore, Islamic philosophy holds that a harsh punishment serves as a deterrent; however forgiveness and compassion are strongly encouraged.

2.7 The Feeble and Ineffective Justice System


a. Since the adoption of the new Constitution in August 2008, the Maldives criminal justice system changed from confession-based to evidence-based along with rights of the accused. New legislation such as the Penal Code, Criminal Procedure Code and Evidence Act were meant to be enacted in order to comply with the new constitutional framework. The justice sector personnel, including the police, prosecutors and judiciary have not received the proper adequate training and education to comply with the new constitutional framework. There is a greater need to educate the public and the justice sector that criminal matters are based on beyond reasonable doubt.[18] There is an urgent need to train the police investigation officers and prosecutors to build strong evidencebased cases.[19] Similarly, capacity building for the Judiciary is equally important to conduct proceedings in an evidence-based approach. b. Delay in serving justice has been one area which needs special attention and development. One of the main reasons for the delay in justice is: i. The huge backlog of court cases due to the deficiencies in case-flow management of courts. Many cases brought before the courts could be settled out of the court if Alternative Dispute Resolution (ADR) mechanisms are introduced. ADR methods such as mediation or reconciliation[20] could be introduced in family matters and commercial disputes. ii. The lack of legal representation causes delay in justice. As per the constitution, the State must provide legal representation for those accused of serious crimes. Unfortunately too often we see the State is unable to meet this need due to lack of lawyers as well as the current mechanism for providing lawyers is not managed well by the Attorney Generals Office (AGO). There are only 3 registered lawyers with AGO for this service.

18 Designed, developed and conducted a door-to-door awareness raising campaign on human rights and constitution in 2010 and 2011 across Maldives 19 In 2011 facilitated training of 89 magistrates on human rights and constitution including Police and magistrates forums in capital islands on the importance of streamlining 20 At present only Family Court in Mal provide mediation and reconciliation

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Access to Justice in Maldives: Through the Eyes of a Colourless Lens

c. There are no detention facilities for juveniles; often they are left on the streets to commit more crimes until they turn 18. By the time they turn 18 they have a list of offences longer than their lifetime existence. Given that most adult criminals begin their criminal career as juveniles, it is important to introduce prevention programs for juveniles to prevent the onset of adult criminal careers.[21] d. There is currently no comprehensive programme on restorative justice, non-custodial sentencing or rehabilitation of offenders while at the same time the burden on prisons are at alarming levels. The prisons are not well equipped and the staff are not adequately trained to handle the incarceration process, especially as the majority of incarcerated are youth held on drug-related charges.[22] e. Victims of sexual abuse and domestic violence cases often go unreported as the victims lack the confidence in the justice sector institutions. Victims major issues relate to institutions not being able to maintain confidentiality, the stigmatization of those victims or simply due to religious beliefs. f. There is no temporary accommodation that can be granted to the victims of abuse and domestic violence victims. One reason as to why women tolerate sexual and physical abuse is due to the fact that they cannot seek temporary refuge until the divorce is granted or finalised by the Court. The victims of such abuse and violence are not provided with psychological assistance, thus leaving them without a remedy but to cope with assault and abuse. Often the perpetrator is the bread winner of that family and hence, due to financial hardship, the victim will usually retract their statement in court. A Shelter home will provide temporary relief whereby accommodation is accorded until the court proceedings are finalised or until they are at ease to return to a safe environment. g. The traditional gender biases and cultural values hinder the ability of women to sustain legal claims, resulting in a loss of confidence in the justice sector institutions. Often in the islands when a woman requests for a divorce, almost always the woman is asked to reconcile despite the abuse. I met several women who were living outside the matrimonial home because the court would not grant them divorce after repeated requests. The practical application of equality and nondiscrimination based on a gender approach is a new experience in the Maldives and hence a greater need for education and awareness on the constitutional rights as well as consciousness on gender sensitivity is paramount. h. One of the weakest areas in the criminal and civil procedure in Maldives is the right to appeal. It matters little in this regard whether the cases are civil or criminal or whether they are being tried in Mal or in the Atolls. Unfortunately, I did not meet any criminal court user who in fact appealed their case.[23] Reasons given were; they didnt know the procedure, didnt know if they could, that there was no point because the offence was contrary to Shariah law or it was too late (usually it is 90 days for Mal and 180 days for the Atolls) and/or simply the Department of Penitentiary and Rehabilitation Services (DPRS) did not facilitate this right for the incarcerated prisoners.[24] In civil matters, the cost of appeal is too high given that appeal courts are in Mal only. i. There is no formal case reporting hence often media who are also not equipped to report legal cases, often make incorrect remarks about the case. Similarly due to no official case reporting precedents are often not followed by the court, hence the courts lacks consistency when deciding similar cases. This inconsistency also arises as a result of the nonexisting prescribed procedures such as the Criminal Procedure Code and Civil Procedure Code. j. There is no formal or centralised system of records for judgments regarding debts. Currently records are kept manually, the system is not centralised and there are no public records of judgment debts. This means that if a debtor does not pay a judgment debt, the matter may need to be re-heard because the court may not be able to find the records of the original judgment.[25]

21 22 23 24 25

Visited all the prisons, detention facilities across Maldives In 2010, I was involved in training 23 Prison Staff on human rights and constitution along with international human rights conventions In 2010 and 2011 I interviewed all the inmates in Maafushi, Himmafushi and Dhoonidhoo and interviewed random court users from the atolls See the prison assessment and proposed rehabilitation report. Available at http://www.undp.org.mv/v2/?lid=99&dcid=279 for example, records kept in Addu courts may not be recovered as a result of the 8 February 2012 arson attack

16

Chapter 2 Calling the Pot Black

k. An area which requires immediate attention is to establish an enforcement mechanism for civil and criminal matters. Only one-third of both civil and criminal judgments are enforced. l. An Atoll police station exists in every capital island but with less than adequate facilities. There is no female police presence in the atolls hence police often avoid arresting female offenders in some circumstances. Most Atoll police stations rely mostly on public or private transport which results in delay in attending crime scenes in an island with no police presence. m. State Attorneys, Members of Parliament and prosecutors can appear in private legal cases and some even run their own private practice. These arrangements are a direct breach of the separation of powers doctrine. This again demonstrates a failure to appreciate how a democracy and the separation of powers are intended to operate. Although rights are defined and independent institutions exist to ensure rights are protected, the weakness of the current justice system lies with corruption and the lack of untrained professionals across the board. These include Members of the Parliament, Executive, Judiciary and independent institutions.

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Access to Justice in Maldives: Through the Eyes of a Colourless Lens

Chapter

Future of Maldives

3.1 Geography
Access to justice is a shamble in Maldives. It is intricate due to several factors such as economical and social issues, lack of procedures, policies and laws, corruption, lack of qualified human resources, fundamental religious beliefs, newly found democratic reform and politics. Although it is a long list of issues and challenges, the most crucial one that inhibits justice in terms of development and access is the geography of Maldives. Maldives consists of 20 Administrative Atolls with 1190 islands in which 198[26] islands are inhabited and further 100 islands are developed and occupied as resorts. The remaining islands are either used for cultivation, picnic islands or remain as uninhabited islands. The chain of coral atolls are stretched at a distance of roughly 90,000 square kilometres making it the most dispersed country in the world. The 350,000 population is scattered throughout the 198 islands with the greatest concentration in the capital island, Mal. The capital Mal, only 2 square miles, has an estimated residing population of 130,693 with an additional 80,000 expatriates making Mal one of the most densely populated cities in the world. There are islands in Maldives that are twice or three times bigger than capital Mal such as S. Addu, GN. Fuavmulah, HD. Kulhudhufushi, A.Dh. Maamigili, GDh. Thinadhoo L. Gan or Hulhumal (the man-made island). The 198 inhabited islands take various shapes and sizes and it comes with unique opportunities and environmental challenges with varying populations. Some islands provide a haven for fishing while others provide opportunities for agriculture. Despite the opportunities almost all islands, especially the smaller islands, are subject to varying degrees of environmental challenges. According to the 2006 UNDP Disaster Risk Profile, Maldives faces multiple hazards and disasters including, storm surges, tsunamis, heavy rains, localised flooding, tidal waves, earthquakes and dry spells. In addition, the following issues are common in the islands: Waste management - this is one of the most serious economical and environmental challenges facing the country. Due to the lack of adequate waste management facilities, lack of efficient and affordable collection systems, (mainly transportation of waste from islands to disposal sites), greater distance between households and disposal sites, disposal of waste on the beach is a common practice in Maldives. Erosion - this is also a serious environmental issue in the Maldives. The sand at the beach and the shoreline are washed off on many islands. Erosion is caused by various factors such as oceanographic, climatic, geological, biological and terrestrial processes with human intervention. Majority of islands in Maldives suffer from some form of erosion. Immediate costal protection and adaptation measures are fundamental to the survival of the islands. Sanitation and water - Wastewater disposal systems in most of the islands are on-site sanitation with septic tanks and soak pits within the household compound resulting contamination of groundwater. Out of the 198 inhabited islands only few islands have improved sewerage systems with just a hand full of islands with a desalinated piped-water network with household connections. Acute water shortages in the islands are common during prolonged dry periods. After the 2004 Tsunami, 50 desalination plants were donated to different islands to use mainly as emergency water sources. Unfortunately 50% of these plants are not functional as a result of limited financial/technical capacity.

26 I have been to 93 islands

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Chapter 3 Future of Maldives

3.2 Access to Justice and Population Consolidation


Over the years Maldives received financial and economic assistance from multilateral development organisations, including the United Nations Development Program (UNDP), Asian Development Bank, World Bank, individual donors--including Japan, India, Australia, China, Europe and Arab countries (including Islamic Development Bank and the Kuwaiti Fund etc.). In 2011, the UN took the Maldives off the Least Developed Countries (LDCs) list after finding that its estimated gross national income (GNI) per capita in 2009 was three times over the graduation threshold (due mainly to growth in the tourism sector). Graduating from LDC status implies the loss of benefits, such as special eligibility for technical assistance or preferential access to the EUs market, which will end after a transition period of three years. But have these grants and the growth in the tourism sector really achieved anything in terms of development and access to justice in Maldives? The development of Maldives means the development of 198 inhabited islands with the entire infrastructure necessary to provide access to justice including necessary human resources. With a population of 350,000, how is it humanly and financially possible to have a functioning school, medical facility, courts, police station, harbour in 198 islands? Despite the small population and dispersed nature of the country, governments have always created the capital (Mal) as the focal point for all bureaucracies. Government of Maldives have never made any real effort to educate the communities of the importance of population consolidation[27] nor have actually taken any tangible action towards it. Over the years Government of Maldives made sporadic efforts of migrating communities to bigger islands without a long-term plan and introduced a ferry system to connect the islands. How does a ferry system assist the communities in providing access to justice without adequate infrastructure or human resources? Similarly how does building the biggest convention centre in the region make that island developed when education and health facilities are neglected? Or how does building a bridge between Hulhumal and Mal provide access to justice to the rest of the country? Often law makers and policy makers seems to forget or ignore the 198 inhabited islands and focus highly on the capital Mal in terms of access to justice. As a result, Education and Health facilities are less than adequate in the atolls. In the inhabited islands there are no local doctors, lawyers, psychologists or medical specialists. Most medical facilities are housed by a single General Practitioner and nurse(s) from neighbouring countries such as India or Pakistan. Very few islands have Maldivian teachers. 2004 Tsunami victims still live in temporary shelters after 8 years.[28] Due to a bitter political rife, 15 people were living in an island from 2008 until 2012. The island was declared uninhabited in 2010.[29] A person from an island has to be physically present in Mal to obtain a passport[30] or seek specialised medical services. The entire superior and appeal courts are in Mal. All the practicing lawyers, local doctors are also in Mal. If an islander wants to obtain a criminal record for employment purposes, the person has to be physically present in Mal.

27 During my visits to the islands in 2011, I created dialogue in 84 islands, with island and atoll councillors, NGOs, general public of 84 islands on the importance of population consolidation with regards to providing access to justice. Majority citizens are keen to the idea as long as government provides them the avenue for migration to islands with adequate facilities. 28 M.Kolhufushi 29 In October 2011 I was in L.Kalhaidhoo. The 15 people were relocated to L.Gan in August 2012. 30 You are able to obtain a national ID card with the assistance of the councilors however the process is extremely time consuming and almost ineffective.

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Access to Justice in Maldives: Through the Eyes of a Colourless Lens

Due to the lack of resources and opportunities in the islands, people from even bigger islands often abandon their homes and move to Mal. As a result, it is common to have islands with less than 30 people. In Maldives 75 islands have a population of less than 500 people and a further 75 islands have a population of less 1000 people. Ironically, despite the lack of facilities and adequate access to justice over the years politicians, just for a mere vote, have promised their constituents that building a football stadium for a population of 120 people would make their lives better. There is a whole gamut of issues in relation to access to justice in Maldives. However these issues will remain as issues unless we reduce the number of administrative islands in the Maldives. With the constitutional guarantees for a host of human rights and freedoms, there is a parallel need to set up strong systems that could safeguard and deliver these rights and create a fair, equal and just nation. Simultaneously, there is an immediate and pressing need to create avenues and increase awareness among the public in order to enhance citizens abilities to be availed of these rights. As such, there is a need to review the current education system and curriculum in the country and bring about contemporary reforms. The bottom line is, without reducing the number of administrative islands, Maldivians will never receive adequate access to justice. It is not economically and financially feasible to promote accessibility, fairness and efficiency to 198 islands. Population consolidation is the first step towards sustainable development of Maldives.

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Chapter

Appendix 4
4.1 List of 93 Islands Visited
1. HA-DHIDHOO, Hoarafushi, Utheemu, Thakandhoo 2. HD-KULHUDHUFUSHI, Vaikaradhoo, Hanimaadhoo, Nellaidhoo, Neykurandhoo 3. SH-FUNADHOO 4. N-MANADHOO, Kendhikolhudhoo 5. R-UNGOOFAARU 6. B-EYDHAFUSHI, Goidhoo, Fulhadhoo, Kihaadhoo, 7. LH-NAIFARU, Hinnavaru, Felivaru, Kurendhoo 8. K-THULUSDHOO, Himmafushi, Kaashidhoo, Guraidhoo, Dhoonidhoo, Maafushi, Huraa 9. AA-RASDHOO, Thoddoo, Himandhoo, Ukulhas, Feridhoo 10. AD-MAHIBADHOO, Dhangethi, Maamigili 11. V-FELIDHOO, Keyodhoo, Rakeedhoo, Thinadhoo, Fulidhoo, 12. M-MULAK, Dhiggaru, Veyvah, Madduwari, Muli, Kolhufushi 13. F-NILANDHOO, Bileddhoo, Dharanboodhoo, Feeali, Magoodhoo 14. DH-KUDAHUVADHOO, Bandidhoo, Hulhudeli, Maaenboodhoo, Meedhoo, Rinbudhoo 15. TH-VEYMANDOO 16. L-GAN, Kadhoo, Fonadhoo, Isdhoo/Kalaidhoo, Kalhaidhoo, Maabaidhoo, Mundoo, Maavah, Kunahandhoo, Gaadhoo, Hithadhoo 17. GA-VILLINGILI, Dhaandhoo, Kondey Dhevvadhoo, Kolamaasfushi, Maamendhoo, Nilandhoo, Kanduhulhudhoo 18. GD-THINADHOO, Nadella, Madaveli, Hoandehddhoo, Rathafandhoo, Fiyoaree, Faresmaathoda, Vaadhoo, Gaddhoo 19. GN-FUVAHMULAH 20. S-HITHADHOO, Maradhoo, Maradhoo/Feydhoo, Feydhoo, Huldhoo, Meedhoo

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Access to Justice in Maldives: Through the Eyes of a Colourless Lens

4.2 Photographs

10

11

12

1 Chief Justice Ahmed Faiz Hussain delivering a presentation at the Human Rights Judicial Training of Trainers Seminar, April 2010; 2 At the Human Rights Judicial Training of Trainers Seminar, April 2010; 3 Visit to Laamu Atoll Thundi Court; 4 Visit to Shaviyani Atoll Funadhoo Court; 5 With ICJ (International Commission of Jurists) mission including Dr. Despouy; 6 Conducting training for prison officials on Human Rights, the Constitution and Standard Minimum Rules for the Treatment of Prisoners at K Atoll Maafushi Prison, September 2010; 7 With volunteers to conduct Did You Know door to door campaign at Hulhumal; 8 With Dr. Naaz to conduct Prison Assessment Survey; 9 With trainer judges from the Human Rights Judicial Training of Trainers Seminar in Karachi, Pakistan; 10 Speaking at Hamdard School of Law in Karachi, Pakistan; 11 At the Karachi Human Rights Commission; 12 Visit to prisons in Karachi including Womens Prison, Young Offenders Prison and Central Prison

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Chapter 4 Appendix

13

14

15

16

17

18

19

20

21

22

23

24

13 At Haa Alif and Haa Dhaal Atoll magistrate training session on Human Rights and Constitution; 14 At Noonu and Raa Atoll magistrate training session on Human Rights and Constitution; 15 Meeting with police investigating officers at Noonu and Raa Atoll, this being a session at the magistrate training programme to streamline the pretrial detention procedures in criminal cases; 16 At Baa and Lhaviyani Atoll magistrate training session on Human Rights and Constitution; 17 Holding dhurra; 18 At Alif Alif and Alif Dhaal Atoll magistrate training session on Human Rights and Constitution; 19 A citizen reading Did You Know pamphlet; 20 At Meemu Atoll with volunteers for legal aid, victim support and Did You Know door to door campaign; 21 At Kaafu, Vaavu, Meemu, Faafu and Dhaalu Atoll magistrate training session on Human Rights and Constitution; 22 At Thaa and Laamu Atoll magistrate training moot session during Human Rights and Constitution training programme; 23 At Gaafu Alif and Gaafu Dhaal Atoll magistrate training session on Human Rights and Constitution; 24 At Gaafu Alif and Gaafu Dhaal with volunteers for legal aid, victim support and Did You Know door to door campaign

23

Access to Justice in Maldives: Through the Eyes of a Colourless Lens

25

26

27

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29

30

31

32

33

25 At Shaviyani and Gnaniyani Atoll magistrate training session on Human Rights and Constitution; 26 Donor representations visit to police training school in Addu; 27 With NGOs in Addu; 28 At Did You Know campaign, Phase 2; 29 With Chief Justice Ahmed Faiz Hussain at Did You Know campaign, phase 2 at the stall of Dhevana Furusathu; 30 With Chief Justice Ahmed Faiz Hussain at Did You Know campaign, phase 2 at the stall of Faculty of Shariah and Law; 31 With President Mohamed Waheed Hassan Manik and UN Resident Representative Andrew Cox at Did You Know campaign, Phase 1; 32 At Did You Know campaign, Phase 1; 33 With MP Imthiyaaz Fahmy at Did You Know campaign, Phase 1

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