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 'Reformed' Maldive criminal procedure law puts defence lawyers under NSS control
Maldives Culture special report
1 June 2003


Maldives NSS
NSS on parade –
'deep paranoia of the concept of legal defence and fair process'
Recent changes to the criminal procedure law in Maldives place defence lawyers directly under the control of the National Security Service and its investigating officers. These new laws (see translation below) were heralded as establishing legally defined rights for people accused of breaking the law in Maldives, but instead, the changes curtail the ability of an accused person to gain legal aid, and place the defence lawyer at the mercy of investigating officers.

Accused people in custody can only select lawyers who have been vetted and approved by the Ministry of Justice, and those lawyers can lose their registration if the investigating officers complain. A lawyer can even find himself charged over his interview with the accused, which must be conducted along strict guidelines and conform with the expectations of the investigating officers.

This law reveals a deep paranoia of the concept of legal defence and fair process. In one paragraph, lawyer and accused are virtually condemned as co-conspirators:
   'They will discuss the circumstances of the offence, the evidence the investigation has, and what the accused will do or is capable of doing to hide the evidence. The accused and the lawyer may cause harm. In consideration of these matters, the investigating authority and the police have the discretion to be present at such meetings.'


 Maldives NSS training
NSS combat training
It is not surprising that few lawyers are interested in providing legal aid in Maldives. A month after the new laws came into effect, Haveeru newspaper reported that prisoners were having trouble getting registered lawyers to help them, and many prisoners were left undefended. Basically, lawyers are too fearful to even attempt the work because of the sweeping powers the NSS has been given under the law.

This is a disappointing outcome, given the promises that have been made over recent years to introduce fairer procedures. In a Washington Times report on Maldives in 2002, W. Lewis Amselem, Deputy Chief of Mission at the US Embassy in Sri Lanka, said the US was trying to promote legal and political reform in Maldives. 'We do have some limited programs in the Maldives,' he said, 'and we are about to undertake one to promote the rule of law, helping to codify legislation.'

If this new procedure law is any indication, the US is being cleverly deceived by its Maldive associates.

Before his untimely death this month, Mohamed Zahir the first secretary the Maldives High Commission and head of spying operations in Colombo, issued a statement defending the treatment of Sri Lankans by the NSS and courts.

Supporting President Gayyoom's comments to questions raised by the Parents and Guardians Association of Sri Lankan Prisoners in the Maldives, the High Commission's public statement was misleading when it said:
  'While internal communications between various government agencies are in Dhivehi, statements involving foreigners are written down in English with interpreters provided to the person in question. The concerned government is informed promptly and consular access is granted when requested. As a matter of procedure, no court proceedings involving expatriates are conducted without the service of an interpreter. All trials are held in open court, where the officials of the relevant High Commission or Embassy can attend and where the defendant can rely on the advice of his lawyer.'
The Island 18 May 2003
There are no such protections for foreigners in the new law. It only states ambiguously 'if the accused is a foreigner, the provision of a translator is the choice of the lawyer representing the accused.' In other words, if the accused can find a lawyer, then a translator might be found.




Maldive Law regarding the provision of a lawyer for an accused person requesting legal help
effective from 15 December 2002
translated by Maldives Culture editors

1. When a person is arrested for an alleged crime, if that person requests legal help from a lawyer, the investigating authority shall provide that opportunity according to this law.

2. Only those who are listed in the lawyers' registry at the Ministry of Justice may provide legal aid.

3. If the accused person is not in the custody of the investigating authority, that person may see a lawyer listed in the registry at the Ministry of Justice, and discuss the matter being investigated and get legal aid from that lawyer, according to this law.

4. If the accused person who wants legal aid is in the custody of the investigating authority, the accused shall be given the opportunity to make contact with someone who can arrange the lawyer. This phone call shall be conducted in the manner described below:

a. The investigating authority shall make the phone call to the person they are asked to call. This phone call must be made openly.

b. If the accused is a foreigner, the provision of a translator is the choice of the lawyer representing the accused.

c. The opportunity to speak on the phone, to obtain legal advice, is permitted for the accused. If anything other than legal advice is discussed, such discussion should cease immediately. If not, the investigating authority has the discretion to halt the phone call. If the accused has not made proper use of the initial permitted opportunity, then a second opportunity will not be given.

5. The lawyer appointed by the accused must present written confirmation to the investigating authority, of the lawyer's permit to provide legal aid.

6. After obtaining a lawyer over the phone, if the accused makes a request to see the lawyer in presence of a policeman, a single opportunity shall be given. If the accused wishes to see the lawyer more than once, that opportunity may be granted if the investigating authority believes it will not hamper the investigation process and will not hinder the cause of justice.

7. If the appointed lawyer wishes to see the accused in custody, the investigating authority shall give that opportunity.

8. The lawyer visiting the accused in custody must behave with due respect towards the investigating authority. The lawyer shall not seek to influence the investigation process.

9. When the lawyer holds a meeting with the accused about the alleged offence, they will discuss the circumstances of the offence, the evidence the investigation has, and what the accused will do or is capable of doing to hide the evidence. The accused and the lawyer may cause harm. In consideration of these matters, the investigating authority and the police have the discretion to be present at such meetings.

10. The discussions shall only be about matters concerning the payment of fees for the lawyer, the type of alleged offence, what the law says with regard to that offence, and whether the lawyer will be able to defend the accused when the case goes to the court.

11. If the discussions taking place during the meeting are not about legal advice, those discussions shall be prohibited immediately and the meeting will end there. A second opportunity to see the lawyer will not be granted.

12. During such a meeting, if the accused admits to the lawyer that he has committed the offence , the policeman present is to note the admission in writing, and the lawyer will sign that document.

13. The lawyer shall not disclose any of the information discussed in such a meeting, because the discussions concern a case under investigation.

14. If the lawyer or the accused act in breach of this law, it be considered a separate offence, and subject to due process. The investigating authority has the discretion to reject a lawyer who has acted in such a way.

15. The travelling expenses of the lawyer, who wishes to meet an accused person in the custody of an investigating authority, are not a responsibility of the investigating authority.

16. It is a responsibility of the accused to choose a lawyer and arrange payment of legal fees.






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Maldives Culture is an independent internet magazine of Maldivian cultural issues.
Editors and translators: Michael O'Shea and Fareesha Abdulla, Australia
We invite contributions from Maldivians and others interested in Maldives.
Contributions and comments - mc_editors@hotmail.com