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Nashid Column

A less serious offence?

by Dr. Ibrahim Nashid - ibrahimnash@gmail.com, G. Keneree Ge, Male', 23 October 2005

At the request of the Attorney General Dr. Hassan Saeed, Professor Paul Robinson of the University of Pennsylvania submitted a set of proposals in July 2004 to reform the criminal justice system of the Maldives. Since then many commentators, on this site and elsewhere, have been urging President Gayoom to implement the changes proposed by Professor Robinson. Needless to say that so far Gayoom has done nothing about it, because he will lose almost all the power he has over the judiciary of the Maldives. In addition the suggested separation of powers would help reign in the actions of Gayoom's security forces.

I think most Maldivians who favour freedom and democracy would like to see Professor Robinson's proposals implemented. Although the proposals would make the criminal justice system of the Maldives a fairer one, it would be foolhardy to implement them without proper discussion. Item 5.5 of the set of proposals highlights the need for discussion very clearly. This item suggests statutes of limitation for offences, at least for less serious ones. To my knowledge that means a person cannot be charged for a crime after a certain period has elapsed since the crime was allegedly committed. In the current climate of arbitrary arrest and mindless police brutality, a lot of people would benefit from such a limitation. One person for example would be, Mr. Ahmed Falah of H. Nedhunge, in Male'. Mr. Falah was arrested in January 2005 while he was filming a disturbance that took place at a polling station designated for voters of Thaa Atoll living in Male'. He was detained that evening for a public order offence. Weeks later, when the police could not find any evidence against him, even after torturing him severely, they decided to charge him for an offence he had allegedly committed six years before. If there had been statutes of limitation then, the police would not have been able to charge him for that offence and Mr. Falah could be a ‘free' man now. I am certain that there are numerous more examples of this kind.

However, statutes of limitation would not only help victims of police brutality like Mr. Falah, but also his torturers and all those who have been breaking the law at will for the last few years. If such a change was brought in now, would it be just? I am not suggesting taking revenge but bearing all those people in mind who are disabled for life because of torture they suffered at the hands of Gayoom's security forces it cannot be fair to let their torturers get away scot-free. Personally I would like to see the torturers brought to justice in the Maldives in order to prevent further acts of torture and ill-treatment. Without punishment for such offences there would be no hope of preventing torture, but every reason to fear that torture would continue despite a system change. As opposed to revenge, punishment within a legal framework has the advantage of preventing uncontrolled outbursts of further violence.

The other problem of item 5.5 of Professor Robinson's proposals is the definition of "less serious offences" and who should be given the responsibility of finding such a definition for the statute books. Knowing the attitude of most of the pro government parliamentarians, quite a few of the offences described in the Maldivian Penal Code and the international agreements that the Maldives are a party to would fall under "less serious offences". A clear indication of this is the way in which these parliamentarians watered down the Human Rights Commission of the Maldives bill a few weeks ago. One can never trust them to think beyond their personal welfare and consider the benefit of the whole country. Likewise, giving the discretion to the judges to decide whether an offence is serious or not and whether enough time has elapsed since the alleged crime was committed would make the system less reliable as the decision would then rely too heavily on the opinion of one person.

I have attempted here to highlight one problem that I came across in Professor Robinson's proposals. I have written this in the hope that others, especially those with legal training, would join me in discussing the proposals before calling for their implementation. For democracy to function we need discussion at all levels of our society. We have to voice our opinions for the decision makers to hear. At the same time we must learn to listen to the opinions of others, in particular those with a different view. We need to be critical in order to improve and every system needs continual improvement.

Please send feedback and comments to ibrahimnash@gmail.com And, click here to see previous articles by Nashid