Constitution: The Sticking Points
By Zaheena Rasheed
July 19, 2008
Could children of unknown parentage lose the right to be Maldivian under the new constitution? Could euthanasia, abortion or the death penalty be allowed? And could Islamic had punishments be prohibited?
The answer to all of these is yes, according to a new report from the Attorney General’s Office (AGO), which government said must be conducted before the constitution is ratified.
The report finds “fundamental problems,” “practicality issues” and “legal problems arising from grammar mistakes” in the document – though drafting committee chair Ibrahim Ismail (Ibra) argues the issues are “not legal problems,” but “conceptual” issues that parliament had already debated.
The Legal Reform Ministry has now said President Maumoon Abdul Gayoom will announce a date for ratification of the new constitution this month.
But as the document remains in limbo, Minivan News looks at some of the issues raised in the report.
The constitution introduces a new Maldivian Charter of Rights and Freedoms, promoted by legal reform minister Mohamed Nasheed as directly based on the International Convention on Civil and Political Rights (ICCPR).
And Article 33 of the charter reads: “No person shall be subjected to cruel, inhumane or degrading treatment or punishment, or to torture.”
But according to the report, “As the article currently stands, circumstances may arise where hadd [Islamic punishments such as lashings] under Islamic Shariah may be considered degrading.”
Currently those convicted of crimes such as fornication, adultery and alcohol possession in Maldives are punished by lashings under Islamic Shari’ah law.
The lashings are not aimed to cause pain, but are “mainly about the humiliation,” says AGO deputy director Hussein Shameem.
Certainty Of Law
The report has also highlighted the phrase “in accordance with Islamic principle” attached to numerous articles. “Islamic principles” should be elaborated on, the report says.
When the constitution was completed, Ibra said the “blanket references to the Shari’ah [Islamic rule of law]” would dilute the “certainty of law.”
In an apparent translation error, article 30(h) of the constitution reads:”The accused have the right to be presumed innocent until proven guilty beyond all doubt.”
In effect, the burden of 100 per cent proof of any offence would mean “no one can be prosecuted,” says the report.
The AGO recommends the phrase “all doubt” should instead be changed to “reasonable doubt.”
A highly placed lawyer, who prefers to remain anonymous, says the constitution could be interpreted as granting total legal immunity to anyone who has made a statement in parliament.
The issue arises from article 20 of the Majlis (parliament) chapter, which says “A Majlis member or anyone else making a statement that does not contravene Islamic principles at a Majlis session or subcommittee meeting cannot be summoned to court, nor investigated, detained or prosecuted.”
Parliamentary committees are involved in investigating some cases of corruption, murder and other crimes – meaning the clause could prevent suspects in such cases from being prosecuted, even if they admit to the crime, says the lawyer.
Attorney general Azima Shukoor said in a June press conference that ten critical issues had not been included in the report, but sent to President Maumoon Abdul Gayoom separately. It is likely the immunity issue is among these – but they have not been made public.
The double jeopardy principle aims to prevent a suspect being tried twice on the same charges.
But according to the report, the double jeopardy wording in the new constitution could prevent a suspect being tried on different charges for the same offence.
For example, if they were tried for both murder and assault over the same incident, and one case finished, the other would be cancelled.
And if the suspect were acquitted of murder, they could not then be tried for the lesser charge of assault.
The wording in question, from Article 39 of the Charter of Rights and Freedoms, reads: “If an accused is acquitted of an offence by a court of law, he shall not be tried again for the same offence or charges arising from the offence. If the accused is found guilty and punished for an offence he shall not be tried or punished again for the same offence, or charges arising from the offence.”
“Children found in Maldives whose parentage or origin is unknown” are excluded from Maldivian citizenship under the constitution, the report finds.
It notes this would contravene international covenants the Maldives has signed.
The problem appears to have arisen because citizens fall into three categories under the document – those who are already citizens when the constitution comes into force, those born to Maldivian citizens, and foreigners who change their citizenship.
The citizenship clause made headlines in May after information minister Mohamed Nasheed said on his personal blog that Maldivians who convert away from Islam, or who are children of Maldivians married to non-Muslims, risked losing their citizenship under the clause.
The issue is believed to have been raised with government by international diplomats visiting Maldives during the development of the constitution.
The Special Majlis (constitutional assembly) passed the constitution in late June, and it is now awaiting presidential ratification.
Gayoom has promised the country’s first ever multi-party elections will be held under the new constitution, which specifies independent elections and judicial services commissions must be put in place.
Legal reform minister Mohamed Nasheed said at a press briefing last week delays in ratification were due to reviews by the attorney general and cabinet ministers.
He also says the Police Bill, Criminal Procedures Code and “enabling legislation” to allow current regulations to stay in place must be passed before the constitution can be ratified.
But members of the National Unity Alliance of opposition groups have rejected this argument, saying it is a delaying tactic.