Maldives
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Legal Resources for Maldives• Constitution of the Republic of Maldives [1]
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Introduction
Quick summary of the context/recent history
Maldives, an independent island country in the north-central Indian Ocean. It consists of a chain of about 1,200 small coral islands and sandbanks (some 200 of which are inhabited), grouped in clusters, or atolls. The population of Maldives belongs almost entirely to the Maldivian ethnic group, which is the result of various peoples settling in the islands successively through the country's history. The first settlers, it is generally believed, were Tamil and Sinhalese peoples from southern India and Sri Lanka. Traders from Arab countries, Malaya, Madagascar, Indonesia, and China visited the islands through the centuries. The official language is an Indo-European language called Dhivehi (or Maldivian); Arabic, Hindi, and English are also spoken. Islam is the state religion.
After the British took possession of Ceylon in 1796, the islands became a British protectorate, a status formalized in 1887. In 1932, before which time most of the administrative powers rested with sultans or sultanas, the first democratic constitution was proclaimed, the country remaining a sultanate. A republic was proclaimed in 1953, but later that year the country reverted to a sultanate.
In 1965 the Maldive Islands attained full political independence from the British, and in 1968 a new republic was inaugurated and the sultanate abolished. The last British troops left on March 29, 1976, the date thereafter celebrated in the Maldives as Independence Day. Ibrahim Nasr, the country's first president, was succeeded in 1978 by Maumoon Abdul Gayoom, who was reelected to his sixth consecutive term in 2003. The Maldives became a member of the Commonwealth in 1982 (although it withdrew its membership from 2016 to 2020 amid a political spat).
In the first years of the 21st century, Gayoom's government embarked on a long-term plan to modernize and democratize the Maldives, particularly its economy and political system. The plan also identified the country's legal system as inadequate. Beginning in 2003, wide-ranging reforms were instituted to improve human rights and the system of governance. A multiparty political system was created. In 2008 a new constitution was adopted that established greater governmental checks and balances, strengthened the powers of the legislature and judiciary, and allowed women to run for president. The country's first multicandidate presidential election was held in October of that year, and former political prisoner Mohamed Nasheed was elected president, thus ending Gayoom's 30 years in office.
Type of system
Maldives operates under a hybrid system with the Constitution, Islamic Law, and English Common Law.
The constitution of the Maldives was adopted in 2008. The head of state and government is the president, assisted by a vice president and a cabinet. The president and vice president are directly elected by universal suffrage to a maximum of two five-year terms. The cabinet consists of the vice president, government ministers, and the attorney general. With the exception of the vice president, members of the cabinet are appointed by the president.
The unicameral legislature, called the People's Majlis, meets at least three times per year. Its members are elected to five-year terms from Male island and from each of the 20 atoll groups into which the country is divided for administrative purposes. The number of representatives from each administrative division is determined on the basis of population, with a minimum of two per division. The 2008 constitution established Islam as the official state religion. Non-Muslims cannot become citizens, and the People's Majlis is prohibited from making any law that contravenes the tenets of Islam. Other governmental bodies include civil service and human rights commissions.
The highest legal authority is the Supreme Court. Its judges are appointed by the president in consultation with the Judicial Service Commission, a body of 10 members appointed or elected from various branches of the government and the general public. The Judicial Service Commission independently appoints all other judges. There are no judicial term limits; the mandatory retirement age is 70. All judges must be Sunni Muslims. The Supreme Court bases decisions upon the constitution and Maldives law; in cases in which applicable law does not exist, Sharī ah (Islamic law) is considered. Other courts are the High Court and trial courts.
The legal aid situation in the country:
State Sponsored legal aid
The Attorney General's Office provides legal aid to indigent criminal defendants, as there is a constitutional right to counsel.
Existing NGOs providing pro bono legal aid
Public Interest Law Centre (PILC) Family Legal Clinic (FLC)
Number of lawyers (criminal/civil)
Approximately 600 registered lawyers in the Maldives, but only about 300 are actively practicing. Roughly half of the practicing lawyers are government lawyers, who cannot represent private parties or defendants. This leaves an estimated 150 lawyers available for private criminal and civil cases.
Sources of defendant's rights
National Sources of Defendant's rights
Maldives Constitution Islamic Law (Code of Sharia) Criminal Procedure Act (2016) Human Rights Commission (Constitution Article 188)
Rights of the Accused
Independent and impartial institution. It promotes respect for human rights impartially without favour and prejudice.
Appointed by the president; composed of at least five members including the chairman of the commission.
Right Against Unlawful Arrests, Searches and Seizures
No person shall be subject to search or seizure unless there is reasonable cause. (Constitution Article 47)
Residential property shall be inviolable, and shall not be entered without the consent of the resident, except to prevent immediate and serious harm to life or property, or under the express authorisation of an order of the Court.
Right Against Unlawful Detention
Everyone has the right not to be arbitrarily detained, arrested or imprisoned except as provided by law enacted by the People's Majlis in accordance with Article 16 of this Constitution (Constitution Article 45)
Not for arrest, a person may be taken into police custody for questioning on charges of a crime. The persons so taken into custody shall be given the legal warning (Criminal Procedure Code Chapter V Article 50)
Right Not to be Tortured or III-Treated
No person shall be subjected to cruel, inhumane or degrading treatment or punishment, or to torture (Constitution Article 54)
Right to Medical Care
Everyone deprived of liberty through arrest or detention as provided by law, pursuant to an order of the court, or being held in State care for social reasons, shall be treated with humanity and with respect for the inherent dignity of the human person. A person may be deprived of the rights or freedoms specified in this Chapter only to the extent required for the purpose for which he is deprived of his liberty (Constitution Article 57)
Right to be Informed of Charges
Everyone has the right to be informed immediately of the reasons therefore, and in writing within at least twenty four hours (Constitution Article 48)
Within a maximum of 12 hours, an arrested person shall be informed in writing of the arrest, the reason for his arrest, and the offense charged against him (Criminal Procedure Code Chapter V Article 43)
Right to Presumption of Innocence
Accused is to be presumed innocent until proven guilty beyond a reasonable doubt (Constitution Article 51 Section H)
Right Against Self-Incrimination
Everyone accused of a crime has the right not to make a statement against himself (Criminal Procedure Code Chapter V Article 48)
Unless otherwise provided by other law, the only way to submit material evidence is to obtain a sample of his handwriting or fingerprints or extracorporeal or intracorporeal sample to link the same to the accused, whichever is sought from him Not giving means not giving a statement against oneself
Right to Counsel and Effective Assistance
Where a person is being held in custody and questioned by the police, he shall be given an opportunity to telephone his legal counsel or his relative or any other person who can protect his interests and explain his whereabouts before the questioning begins (Criminal Procedure Code Chapter V Article 46)
If the person in police custody so wishes, he has the right to request that his lawyer be with him during the questioning. and, if he so requests, the police shall give him that opportunity
Right to a Present a Defense
Everyone has the right to retain legal counsel at any instance assistance is required (Constitution Article 53)
In serious criminal cases, the State provides a lawyer for an accused person and instructs where legal shall provide who cannot afford to engage one
Right to Due Process
Everyone has the right to administrative action that is lawful, procedurally fair, and expeditious (Constitution Article 43) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
Right to Equal Protection of the Laws
The enumeration of rights and freedoms in this Chapter are guaranteed equally to female and male persons (Constitution Article 62)
The enumeration of rights and freedoms individually in this Chapter shall not be construed to deny or negate other rights retained by the people which are not specified in this Chapter.
Right to Bail
A person arrested on charges of an offense prescribed by law shall have the right to apply to the court for release on bail. Under no circumstances shall a person who has been ordered to be released on bail be kept in custody (Criminal Procedure Code Chapter VII Article 61)
Right Against Double Jeopardy
If an accused is acquitted of an offence by a court, he shall not be tried again for the same or substantially the same offence. If an accused is found guilty and punished for an offence he shall not be tried or punished again for the same or substantially the same offence (Constitution Article 60)
Right to a Fair Trial (Constitution Article 42)
Right to Language Interpretation
The accused has the right to an interpreter to be provided by the State where he does not speak the language in which the proceedings are conducted, or is deaf or mute (Constitution Article 51 Section D)
Right to Habeas Corpus
No person shall be arrested or detained for an offence unless the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence, or under the authority of an arrest warrant issued by the court (Constitution Articles 45/46)
Capital Punishment
The Maldives government announced on December 20, 2023, that it plans to reinstate the death penalty, ending a de facto moratorium on its use that dates back to the 1950s (Human Rights Watch)
Right to Appeal
Everyone related to a matter has the right to appeal a conviction and sentence, or judgement or order in a criminal or civil matter (Constitution Article 56)
Rights of Counsel (Constitution Article 53)
Right to Provide Representation
Everyone has the right to retain legal counsel at any instance assistance is required (Constitution Article 53)
Right of Access to the Client
To retain and instruct legal counsel without delay and to be informed of this right, and to have access to legal counsel facilitated until the conclusion of the matter for which he is under arrest or detention (Constitution Article 48 Section B)
Right to Information
To be informed immediately of the reasons therefore (of arrest), and in writing within at least twenty four hours (Constitution Article 48 Section A)
Right to Confidential Communication with the Client
To have adequate time and facilities for the preparation of his defence and to communicate with and instruct legal counsel of his own choosing (Constitution Article 51)
Means of Protecting or Enforcing Rights
Exclusionary Rule
In the following circumstances, the information referred to in Article 129 of this Act shall not be disclosed or given an opportunity to be examined (Criminal Procedure Code Article 130) Reports and documents prepared by a public prosecutor or agent for the sole purpose of that office or agency in connection with an investigation or prosecution of a case A statement made by a government employee or lawyer, witness or potential witness
Nullity of Procedure
A procedure is considered null and void if it deviates from legal procedures and principle. This can include judicial or legal obstacles for the judge, missing court seals or signatures, or a lack of reasoning in the decision or ruling
Contempt
The trial judge reserves the right to take action against any party who commits an act of contempt of court at any stage of an ongoing trial (Criminal Procedure Code Article 170)
Pre-trial Procedures
Complaint/information
After notice of an alleged offence has been brought to the attention of the investigating authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor General shall lay charges as quickly as possible (Constitution Article 50)
Arrest, Search and Seizure Laws
A person may be stopped and searched without a warrant only if he/she is: (Criminal Procedure Code Chapter V)
Only persons of the same sex as the person being searched shall touch the body of the person being searched and shall be present when he is searched
The police can arrest a person without a court order if:
When applying for a court order to arrest a person, the police shall submit the following information to the court:
While making the arrest, the police officer must:
When arresting and searching a person in custody, the police have the power to take and seize as evidence anything found in his hands, body or clothing relating to the offense charged against him
Interrogation
Before formal charge in court
The offense involved in every criminal charge brought by the State shall be adequately investigated (Criminal Procedure Code Chapter I Article 5)
After notice of an alleged offence has been brought to the attention of the investigating authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor General shall lay charges as quickly as possible (Constitution Article 50)
Procedures to protect against illegal interrogation
No confession shall be admissible in evidence unless made in court by an accused who is in a sound state of mind. No statement or evidence must be obtained from any source by compulsion or by unlawful means and such statement or evidence is inadmissible in evidence (Constitution Article 52)
Court Procedures
Pre-Trial
Charging Instrument
During the investigation stage, The procedures to be followed by law enforcement agencies in filing complaints in connection with criminal offences, searching premises and property, seizing property, stopping, searching and arresting persons (Criminal Procedure Code Chapter I)
Preliminary Hearing
The court shall hold a preliminary hearing in every case brought before the court of competent jurisdiction to determine whether the charge against the person accused of the offense is clear to him, to examine his response to the charge and to determine whether there is a place to proceed (Criminal Procedure Code Chapter XII)
Purpose:
Defendant answers charge by 1) confession of guilt or 2) denial of charge or 3) no appearance and deemed as pleading not guilty.
Judge shall inform the defendant that they have a right to reasonable time and resources within the scope of the Criminal Procedure Act to seek acquittal, seek a lawyer, use an interpreter, not make a statement against themselves, question the witnesses produced by the prosecution, and request the court to produce witnesses of their choice.
If pleaded not guilty, the prosecution shall disclose all the evidence it intends to present to prove the charge against the defendant. The defendant shall be given an opportunity to present evidence in defence, if any. Both defendant and prosecution shall be present at the hearing.
Pre-Trial Motions (Criminal Procedure Code Chapter XIV)
Motion that may be filed:
A party to the case may file a defense, objection or motion with the court before the commencement of the trial that can be decided without considering the subject matter of the trial.
Submitting motions:
Should be filed 30 days prior to trial commencement. The judge shall decide how to hold the hearings within that period. The motion should be accompanied by supporting documents.
Motion includes:
Any defect in the filing of the claim and the form in which the claim is filed.
A defense that may be an obstacle to prosecution; would be raised before trial.
Declaring certain evidence inadmissible.
Discovery (Criminal Procedure Code Chapter 14)
The prosecution shall give the defendant the opportunity to inspect, copy and photograph the following materials upon the defendant's written request.
The prosecution shall disclose information under sub-paragraphs (1) and (2) of this Article if the defendant believes that the information was obtained during an investigation or in response to a question asked by a law enforcement officer.
The State shall provide the defendant with his criminal record upon written request.
Upon written request by the defendant, the prosecution shall provide the results of all physical or mental or scientific tests in connection with the case if they are intended to be used in the preparation of the defendant's defense, or at trial in the prosecution's prosecution. Before the trial, the prosecution shall disclose all evidence against the defendant if requested in writing.
Upon written request by the defendant, the prosecution shall provide the defendant with a list containing the names and addresses of all witnesses the prosecution intends to present.
Trial (Criminal Procedure Code Part V)
Nature of the Trial (Criminal Procedure Code Chapter XVII)
In criminal cases, the following courts have jurisdiction: Superior, Criminal, Juvenile.
Logistics
If the accused has pleaded not guilty at the preliminary hearing, and is detained, their hearing would take place within 70 days.
If the accused has pleaded guilty at the preliminary hearing, they will be heard by expedited trial within a maximum of 5 days.
In exceptional circumstances, the accused can request an extension of the time provided for the commencement of the trial at the latest. The court has discretion to grant such extension if in the best interest of administration of justice.
Fair and uninterrupted trial
Every criminal case shall be tried in a fair, impartial and transparent manner.
After a criminal case is charged, the case shall be tried without interruption.
Public hearing
All stages of the trial of criminal cases shall be conducted in public.
The following circumstances allow for non-public trials:
Lawyers
Prosecutor General's responsibilities/powers include:
Expert Witnesses
Expert witnesses can provide specialized knowledge to the court on matters beyond the judge's typical understanding. These experts are expected to offer impartial and well-reasoned analysis based on facts and their expertise (LexisNexus)
Judges
The President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People's Majlis present and voting (Constitution Article 148)
All other Judges shall be appointed by the Judicial Service Commission, to be established in accordance with the provisions of this Constitution (Constitution Article 148)
A person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character (Constitution Article 149)
Victims
Trials will be conducted in public, except cases when the presiding judge deems it not in the best interest of victims of a crime (Constitution Article 42)
Sentencing
The application of the criminal law or criminal procedure, including the conduct of investigations, criminal proceedings and enforcement of sentences as provided by law, shall extend to the accused person only and shall not affect the legal rights or obligations of any other person (Constitution Article 44)
Appeals
Appeals Process
The High Court and the Supreme Court have jurisdiction to hear criminal cases on appeal (Criminal Procedure Code Chapter I Article 6)
Right to Counsel
"Appeal" means an appeal by a party to the case to the High Court of a judgment of a criminal prosecution by a court of competent jurisdiction finding the accused guilty or not guilty of the offense stated in the prosecution. or the judgment of the High Court on appeal against the judgment of the lower court, to be appealed by that party to the Supreme Court (Criminal Procedure Code Chapter I Article 13)
Collateral Remedies
Everyone who has been arrested or detained without legal authority or justification has the right to be compensated (Constitution Article 58)
Rights in prison
Right to Humane Conditions of Confinement
Everyone deprived of liberty through arrest or detention as provided by law, pursuant to an order of the court, or being held in State care for social reasons, shall be treated with humanity and with respect for the inherent dignity of the human person. A person may be deprived of the rights or freedoms specified in this Chapter only to the extent required for the purpose for which he is deprived of his liberty (Constitution Article 57)
Immigrant's Rights in Detention
May be tried with the assistance of an interpreter, fi they do not speak Dhvehi (Article 167 Criminal Procedure Act)
Right to Medical Care in Prison
Prisoners are entitled to free medical care, including initial health screenings, general check-ups, specialist consultations, and treatment both within the prison and, if needed, outside the prison. Support for mental health conditions included.
Restriction of rights
The enumeration of rights and freedoms in this Chapter are guaranteed equally to female and male persons (Constitution Article 62) The enumeration of rights and freedoms individually in this Chapter shall not be construed to deny or negate other rights retained by the people which are not specified in this Chapter.
Rights of Special Populations
Everyone is entitled to the rights and freedoms included in this Chapter without discrimination of any kind, including race, national origin, colour, sex, age, mental or physical disability, political or other opinion, property, birth or other status, or native island (Constitution Article 17)
Special assistance or protection to disadvantaged individuals or groups, or to groups requiring special social assistance, as provided in law shall not be deemed to be discrimination (Constitution Article 17)
LGBT Prisoners
Same-sex sexual activity is criminalized, with potential penalties including imprisonment and lashings. The legal framework, influenced by Sharia law, makes LGBTQ+ individuals targets for discrimination, hate crimes, and other human rights violations.
Mentally Ill Prisoners
Individuals with mental illness have the right to healthcare, including support for their condition
Juveniles
Protected under the Juvenile Justice Act, a dedicated system that encourages them to desist from crime, operates in a child-friendly environment, and provides them with the necessary rehabilitative treatment to enable them to return to society for good and play constructive roles. The Act prescribes the rules to be established for the establishment of a juvenile justice system.
Sources: https://www.britannica.com/place/Indian-Ocean https://mvlaw.gov.mv/dv/legislations/128/consolidations/1272 https://mvlaw.gov.mv/dv/legislations/140/consolidations/977 https://en.corrections.gov.mv/2017/09/21/healthcare/ https://www.lexisnexis.co.uk/legal/guidance/instructing-experts-in-criminal-proceedings#:~:text=Part%2019%20of%20the%20Criminal,Article%20Summary https://www.hrw.org/news/2023/12/21/maldives-reverse-plans-reinstate-death-penalty#:~:text=(Bangkok)%20%E2%80%93%20The%20Maldives%20government,this%20cruel%20and%20inhumane%20practice.%E2%80%9D https://judiciariesworldwide.fjc.gov/country-profile/maldives#:~:text=Legal%20System,aid%20to%20indigent%20criminal%20defendants https://www.undp.org/sites/g/files/zskgke326/files/migration/mv/Final_word_doc-Legal-Aid-Options-in-the-Maldives.pdf#:~:text=There%20are%20approximately%20600%20registered%20lawyers%20in.precluded%20from%20representing%20private%20parties%20or%20defendants https://www.constituteproject.org/constitution/Maldives_2008 https://mvlaw.gov.mv/dv/legislations/128/consolidations/1272
