PARTICIPANTS’ PAPERS
THE MALDIVES CRIMINAL JUSTICE SYSTEM – AN ALTERNATIVEMETHOD FOR PUNISHMENT
Haleem Mohamed*
I. INTRODUCTION
The Maldives legal system is based on the principles of shariah and other legislation, which is based
mostly on common law. The criminal justice system has been evolving throughout the history of thecountry rising to the needs of this tiny island nation. Historically, the country had few cases of serious
crimes, hence the method of punishment was simple and idle considering the challenges of the time. In
the old days the most effective method of punishment was considered to be banishment, which was apreferred method of punishment to that of incarceration. Therefore, up until recent times, the prison
population of the country was very small and insignificant and even today the prison population iscomparatively smaller than that of other nations in the region or elsewhere.
II. CRIMINAL JUSTICE POLICY
In the past, it was seen that criminals can best be reformed when their freedom is taken away
either by way of incarceration or banishment. Today, however, a new and fresh look has been given to
the whole criminal justice system. Hence, recent legislation puts emphasis on not only the retributive
aspect of punishment but also on the rehabilitative side of the criminal. Recently the government of theMaldives has been trying to assess the effectiveness of the criminal justice system and thus has
established a committee whose mandate among other things was to gauge the effectiveness of theexisting method of punishment and the condition of the prison population.
The committee, which has formulated its findings and policies, has held several consultation
meetings so far with the relevant authorities on their findings and is expected to advise the government
on several key aspects of the existing criminal justice system of the country. It was also part of thevision of his Excellency president Maumoon Abdul Qayoom, that the country must have a modern
justice system by the year 2020. Therefore, the work of this temporary committee is immensely
important as it includes reformative measures to the criminal justice system.
Beyond that, there is general wish and view of the legal community and the jurists, that certainchanges to the criminal justice system are necessary. This is based on several factors:
1. The existing criminal justice system has not for a long time witnessed any legislative reforms so as
to make it dynamic and practical to the changing culture and habits of the people.
2. While there is apparently a certain degree of sentencing options given to the judges, there is very
little or nothing they can do towards rehabilitating the criminal in a practical manner.
3. The prison population of the country is increasing faster than ever imagined before and there isnothing one can do to decrease these numbers.
4. Most of the punishment given to a criminal is considered not appropriate by many considering
either the nature of the offence or the person who has committed the offence or against whom thecrime has been committed.

* Investigation Officer,
Police Headquarters,
Ministry of Defence and National Security Service,
The Maldives

245

RESOURCE MATERIAL SERIES No. 61
Thus, for some obvious reasons it is perceived by many in the legal community that certain
important changes to the system are highly desirable to make the criminal justice system more
effective.
III. SENTENCING POLICIES AND OPTIONSThere are varieties of sentencing options given to a judge when a person is found guilty before him
however non-of these sentences are conditional. Nevertheless, from the penal law of the country it isvery evident that there is considerable clout passed to a judge to rehabilitate an offender by giving him
a sentence appropriate to the offence committed by him. The existing sentencing options include:
1. A judge may sentence a person to incarceration, considering, of course, the nature of the crime hehas committed.
2. The judge may also sentence a person to more rehabilitative types of sentencing such as
banishment to another inhabited island (this form of punishment is now under debate by theconcerned authorities as having a negative effect on the small community of the island to whichthese criminals are banished). One of the reasons is that the law does not make any distinction
between the seriousness of the crime under which a person can be considered for banishment. Thus,
it may still be an effective method of punishment if it can be considered for particular types ofoffences, most probably a less serious type of offence.
3. One of the most effective and rehabilitative types of punishment is that of house arrest commonlyused by judges in the country and is applied for almost all kinds of crime. This kind of punishment
is deemed largely effective to a working population who do not wish to be deprived of their working
places, and their lives limited to their home only.
4. One of the most effective methods of rehabilitation and a method of punishment is a fine. However,this form of punishment, to be made effective, needs certain reforms to the legislation to make thefine appropriate to the crime committed. The existing fines are insufficient as the amounts of thefines were set a long time ago when the living standard was not the same as it is today.
Imprisonment is the most common form of punishment found in all the justice systems around theworld and the Maldives in no exception. However, the population of the prisons is not that highconsidering the number of crimes being committed.
IV. LEGISLATIVE POLICIES AND REFORMS
Though not great in number, there are certain pieces of legislation which advocate and oblige thejudges to give more reform based sentences.
1. Number 99/04 circular issued by the Ministry of Justice outlines the method of punishment for ajuvenile offender. Under this regulation a juvenile may not in any circumstances be imprisoned orhave a fine imposed on them. Under this regulation, a child offender should on the first account bepunished with house arrest only and the punishment should be two thirds of the minimum
punishment prescribed for that particular offence committed by a juvenile. The regulation alsoprescribes that a juvenile who repeats the offence shall be sent to a juvenile correctional instituterun by the government. Under the Maldivian law, a juvenile is one who is below 16 years. The same
regulation does not, however, give an exception to a juvenile who is between 14 to 16 years if theoffence is one of murder or a crime liable for Hud punishment under Islamic shariah.
2. According to a circular issued by the Ministry Of Justice, if the sentence passed on an offender does
not exceed three months the judge should suspend the sentence whether the sentence isimprisonment or house arrest or banishment. However, if the sentence is of between four to six
months the judge still has the discretion to suspend the sentence of imprisonment, banishment orhouse arrest.

246

121ST INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
3. Under the rules of Shariya issued by the Ministry of Justice, for certain kinds of sexual offences thejudge may not sentence the offender to imprisonment or banishment if the offender is a female. The
rationale behind this discrimination of punishment is deemed to give the offender appropriate
punishment which could rehabilitate her. Nevertheless, the effectiveness of this discrimination ofpunishment is questionable.
4. Certain laws promulgated recently embody the rehabilitative aspect and an alternative toincarceration. Thus law number 17/77 (law on misuse of drugs) states that an offender who abuses
drugs should be given the opportunity to get rehabilitated in the government run rehabilitation
center.
V. POSSIBLE ALTERNATIVES TO INCARCERATION IN THE MALDIVESThe criminal justice system of the Maldives is still undergoing change and development and is verymuch in transition. Policy makers have made recent changes, while law makers are in the process ofdrafting new criminal laws. At this point in time we are in a very sensitive stage of our criminal justicesystem which is going through many changes in the treatment of offenders and in the sentencing
policies for criminal offenders.
When it is seen that certain crimes are on the rise, the law makers favour harsher laws rather thanleniency in sentencing offenders. In this aspect it is important to examine the present laws insentencing policy in order to determine whether any alternatives to incarceration can be adopted in thecriminal justice process. In respect to the above it is important to examine the recent changes that weremade to Law No. 17/77, the law dealing with narcotic drugs.
Previously, the law which deals with narcotic drugs, allowed drug users and addicts to undergo
rehabilitation, instead of sentencing them to jail where treatment for drugs is not available. (However
the court only sentenced the drug offender to a rehabilitation center if they confessed to using drugs
and if they agreed to undertake treatment). Currently, after the recent change in Law No. 17/77 theoffender is sentenced to jail and the court will send the details to the Special Committee which decides
whether an offender should be allowed to get treatment or not. Treatment presently depends on if theperson is a first time drug offender and to receive treatment he must not have committed any othercrimes. Therefore it is much tougher to be selected for a rehabilitation center now. This shows that if
the policy makers have evidence that a certain crime is increasing in this small community they favour
harsher sentences to protect the rest of society from an increasing crime rate. It will be interesting to
explore the case of the glue sniffing offender in the Maldives with regards to Law No. 17/77. In the pastglue sniffing carried a six month banishment and with the recent changes in the law (due to theincreasing number of glue sniffing offenders in the country) the glue sniffing offender is sentenced tothree years in jail. This three year sentence will be passed even on a first time offender.
As we are in a very experimental stage of social and legal understanding in the Maldives, we see
new types of crimes which we have not seen in the past increasing every day, law makers and policy
makers will be hesitant to allow leniency in the law. We have to remember that the Maldives is a verysmall state and the threat of losing more people to criminal behaviour has to be avoided at all costs even
if this means that detention is practiced for more crimes. However, it is also an obligation on the state toultimately find the safest options and avoid detention for minor and petty offences and to also allow
non-custodial sentences for first time offenders for certain crimes.
In the Maldives, the law allows a wide discretion on the judge in sentencing under the Penal Code
(Criminal law). Depending on the crime, the judge has discretion to sentence the criminal offender tojail, banishment to another island, to house arrest or a fine. At the moment the law does not allow
warnings but this is something the police in their day to day duty can practice if the crime is a traffic
violation or some other very minor offence. However, this will be a fact for the government and thepolicy makers to decide after extensive research. Although the judge has this wide discretion on themethod of sentencing, they are bound by the rules of uniformity, to treat like cases alike therefore
judges do not take the situation of the offender into consideration. This is in fact to maintain uniformity

247

RESOURCE MATERIAL SERIES No. 61
and practice the principle of precedent in deciding cases so as to avoid unfairness or to create a
distinction between offenders of similar crimes.
Currently, community service is not an option available under the penal code of the Maldives.
However it is correct to say that banishment amounts to a type of community service where theoffender is banished to an island to serve the full term of his sentence. While banished he or she would
be allowed to work if they so wish, and live with the community without much restriction on his or her
movements. The offender’s movement is restricted to that island. Another alternative to incarceration
practiced in the Maldives is the suspension of a sentence. This suspension will be afforded to an
offender if he or she is sentenced to less than three months jail or banishment and the judge will use his
discretion to evaluate the case and circumstances in which the crime has been committed but also
depend on whether the offender has a past criminal record or not.
The question is whether the majority in a small state like the Maldives will favour community
service as an alternative to incarceration? The need to re-integrate minor offenders and those who
commit petty crimes into society is an important obligation on the law and policy makers. Evidence thatthe policy makers do not encourage incarceration of offenders can be seen in the establishment of adrug rehabilitation center, this shows that importance has been placed on re-integrating drug offenders
back to society.
It is also important to highlight the nature in which juvenile offenders are dealt with in theMaldives. The law protects the juvenile offender of sixteen years and below because jail sentences are
not allowed to be passed on them. Nor can they be fined by a court for a criminal offence. The juvenile
offender will either be sentenced to house arrest, in which he will be allowed to attend school with aparent or guardian. If the juvenile offender continues committing criminal acts more than two times
then they will be sentenced to the juvenile center, depending on the crime, for a certain term. It is very
important to establish a system where young offenders are sentenced into community service rather
than house arrest or the juvenile detention center as they will be separated from their parents, school
and community. In the future it is possible that community service will be implemented for minor
offences as an alternative to incarceration. Many juveniles in this country should be sent for community
service as a punishment for their crimes, rather than given any other method of sentencing.
A further way of avoiding harsher sentences, which might mentally and emotionally damage theyoung offender, is to introduce a system of probation. Alternatively, suspended sentences could be more
widely used, especially for minor and first time offenders.
A system of bail could also be introduced to this effect whereby all offenders can benefit. The state
will also benefit if a system of bail is introduced, in that the state’s expenditure on prison costs would be
reduced. Unlike other countries, the Maldives does not issue warnings. It is known that a stern warning
to a juvenile can be a sufficient deterrent for future crimes. To go through the legal process is anundesirable thing, especially for a young offender, and in a small country like the Maldives it is often
the case that a person will carry a label for the rest of their life. If this can be avoided through a simple
warning then it is worth considering this alternative too.
Professional counselling is given to convicted drug addicts when they undergo rehabilitation they
are even allowed to work and earn while they are under community rehabilitation. It is therefore
important to recommend extending the counselling services for other offences. Counselling services andother methods of learning work skills could also be established in jail to improve the quality of life injail which will further amount to less stigmatization of offenders and also help them to re-integrate into
society once they have completed the duration of their sentences.
Probation should be established so that offenders serving a long jail sentence with good behaviour
have the possibility of being re-integrated into their family and society. Alternatives to incarcerationthat have been discussed above would without a doubt require further allocation of funds by thegovernment to support such alternatives, but the long term benefits would make it worthwhile.

248

121ST INTERNATIONAL TRAINING COURSEPARTICIPANTS’ PAPERS
VI. CONCLUSION
In conclusion it can be said that in a small country like the Maldives, alternatives to incarcerationneed to be more fully explored before they are established and implemented at every stage of thecriminal justice process. Even if alternatives to incarceration are established, it will only be limited tocertain offences, with a definite list of criteria. It is possible that the majority of the law-abiding citizens
will look upon leniency and non custodial sentences as problematic. The question is when the timecomes would parliament support such a system, and would the majority of the people accept such asystem of community based non-custodial sentences? Would the alternatives to incarceration increase
the rate of crime, or decrease it? Would leniency deter potential offenders? These are some issues thatwould have to be addressed if any new methods were to be implemented into the criminal justiceprocess. With greater numbers incarcerated, a serious effort needs to be made to determine whether
alternatives to imprisonment are desirable or not, and whether it could be an effective method of
sanctioning criminal offenders.

249