Reference No: 110/10/2012
15 October 2012
MDP Expresses Concerns Over President Nasheed Being Charged Under an “Archaic and Incomplete” Penal Code
The Maldivian Democratic Party (MDP) has stated that President Nasheed is charged under an “archaic and incomplete” Penal Code that predates the democratic transition in 2008, reiterating that the charges are politically motivated.
The MDP government, in 2009, strongly advocated for a temporary, open-ended moratorium on the current penal code. A new codified Penal Code was drafted and submitted to the People’s Majlis (Parliament) by the then Attorney General. However, to this day it has still not been passed by the Peoples Majlis.
President Nasheed is charged under Article 81 of the Maldivian Penal Code titled “Public servant using authority to arrest or detain innocent persons.” If found guilty under this Article, President Nasheed may be disqualified from contesting in the presidential election.
The international community and prominent legal experts have consistently alerted the Maldivian Government on the need to reform the penal code that was drafted in the 1960s.
In 2006 Dr. Paul Robinson of University of Pennsylvania Law School, drafted a new Penal Code for the Maldives under UNDP sponsorship. He underlined a number of reasons why the current Penal Code is lacking and stated that it required urgent amendment. Dr. Robinson stated that the “current penal law regularly fails to do justice and results in injustice”. This is due to the fact that the current Penal Code does not define certain legal concepts, rules and offenses listed under it. This creates inconsistencies in practice, therefore creates many anomalies with regard to precedents.
In 2008 the Judicial Services Commission (JSC) was created under the Article 157 of the Constitution of the Maldives to act as an ombudsman of judicial misconduct. Despite the fact that many in the judiciary did not meet necessary academic or disciplinary requirements stipulated under Article 149 of the Constitution, JSC failed to efficiently penalize said judges during the transitional period mentioned in the Constitution.
In 2011, the International Commission of Jurists stated that, “The JSC …was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner.” The Penal Code fails to rectify JSC’s shortcomings, as it does not include provisions to deal with overarching judicial corruption.
Furthermore, the United Nations Human Rights Committee (UNHRC) stated in July 2012 that they are “deeply concerned about the state of the judiciary in the Maldives,” and that it is “in need of radical readjustment.”
“We are deeply concerned the prosecutor general is proceeding with the trial that will neither be fair nor lawful. President Nasheed is charged under obsolete regulation, that does not tally with the new democratic constitution and this trial is politically motivated,” stated Hamid Abdul Ghafoor, MDP spokesperson for International Affairs.
Hamid Abdul Ghafoor
Spokesperson, International Affairs