CRIMINAL JUSTICE RESPONSE TO CRIME MOTIVATED BY
INTOLERENCE AND DISCRIMINATION
Raufa Haidar*

I. INTRODUCTION
Until the new Constitution of the Republic of Maldives came into effect in 2008, the criminal justicesystem of the Maldives has been functioning as an integrated body, whereby all relevant agencies of thesystem work together, but these bodies (i.e. investigation, prosecution and adjudication) became independent
with the enforcement of the new Constitution, the purpose being to empower these agencies to work
effectively and independently.

II. THE STATUS OF CRIME MOTIVED BY INTOLERANCE AND DISCRIMINATION
Although Maldives still remains a homogeneous country belonging to one nationality, it has become a hostfor thousands of migrant workers and hundreds of tourists of different nationalities. Thus, Maldives can now
be considered a country where multi-racial people live or reside, be it for pleasure or for economic reasons.
Reported cases of ill-treatment faced by migrant workers are increasing although the basis of suchtreatment is ambiguous, and the negative attitudes faced at times by migrant workers from locals are ofnoticeable concern, but no official survey has been done so far.
In a press statement1 released by the Human Rights Commission of the Maldives in 2016 on theInternational Day for the Elimination of Racial Discrimination, it was explained that Maldives is seeing an
increase of racial indifference and hostility towards those of different races living the country. It pointed outthat expatriate workers are subjected to harsh conditions such as congested spaces and that the mostnotable suffering inflicted on those workers is the society’s perception of them as insignificant, making themprone to all kinds of abuse. It was also noted that, even though Maldivians are based on the same race, actsof discrimination (however small) against others based on differences among the society are seen and thatbeing judgmental of a person based on his or her island, language, and political or religious differences will
have adverse effects on the society.
With the enforcement of the new Constitution of the Republic of Maldives in the year 2008, discriminationof 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, was prohibited. Article 17(b) of the Constitution
states: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 island2.
Article 55 of the Constitution of the Republic of Maldives guarantees that no person is subjected to cruel,inhumane or degrading treatment or punishment, or to torture, while Article 56 of the Constitution ensures
the right to appeal a conviction and sentence, or judgment or order in a criminal or civil matter tried on
anyone, including foreigners, under the Maldivian Law.
Maldives has been taking measures on a national and international level to combat crimes against
discrimination. Maldives acceded to the International Convention on the Elimination of All Forms of Racial
Discrimination (ECRD) on 24 April 1984 and to the Convention against Torture and Other Inhuman or* Assistant Legal Officer, Supreme Court of the Maldives.
1
http://www.hrcm.org.mv/dhivehi/news/pressreleasearchive/PR052016.pdf
2Constitution of the Republic of Maldives 2008; Article 17 (b).

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Degrading Treatment or Punishment (CAT) on 20 April 20043. Since then, a lot of work has been done on anational level by the relevant authorities and the parliament. The output of this work can be seen throughthe new enforced laws on sexual offences and harassment, gender equality, and the Domestic Violence Act4.
The object of the Gender Equality Act is to facilitate all steps towards prevention of discrimination basedon gender and prevention of all ideas and practices that promote discrimination between men and women in
conformation with the Convention on the Elimination of All forms of Discrimination Against Women and the
Optional Protocol to the Convention on Elimination of All Forms of Discrimination Against Women5.
According to Section 4 of the Gender Equality Act:
Gender equality, for the purpose of the Act shall mean equality of opportunity, equality inaccessing opportunities, the opportunity to achieve results on equal terms and the fundamental
equality of rights and freedoms for men and women.
Similarly, Maldives has taken important policy initiatives to strengthen labour management and to protect
labour rights including the ratification of the eight International Labour Organization conventions in 2013.
The Government is committed to end the exploitation of workers in Maldives and this commitment was
further demonstrated by the ratification of the Anti-Human Trafficking Act in 2013.6
Legislation, such as the Employment Act and the Civil Service Act (compatible with the Constitution),provides equal socio-economic services and benefits as well as equal access to economic and politicalparticipation. In addition to the above-mentioned legislation, the Penal Code of the Maldives enacted in 2014,provides a mechanism to criminalize the homicide offences, assault, threat offences, property damage anddestruction offences and offences against the family, irrespective of the motive of the offender.

III. INVESTIGATION
In every country, the investigation authorities play a key role in combating any offence. In Maldives themain investigation agency is the Maldives Police Service. They are empowered by the Police Act 2008. The
police are responsible for enforcing criminal law, enhancing public safety, maintaining order and keeping thepeace throughout Maldives.7 Thus police officers are vested with special powers to arrest persons on suspicionof a crime, conduct searches, seize or discover evidence, and investigate criminal acts. The powers of thepolice are further elaborated and extended in the “Regulations on Executing of the Constitutional Authority
and Discretion Accorded to the Police.”
Although Maldives Police Service is the principle investigating agency, the Human Rights Commission(HRCM) of Maldives8 which was established on 10 December 2003 as an independent and autonomous
statutory body, was created by the President of the Republic of Maldives with the right to sue and be sued.
The HRCM has the authority to investigate complaints filed with the HRCM alleging infringement of humanrights or aiding and abetting such an act or should the Commission have reason to believe such an act wascommitted or is being committed9.

IV. PROSECUTION
In the Maldives, the sole power to prosecute any criminal case is vested in the Prosecutor General10.
3

https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=MDV&Lang=EN
Act No. 17/2014 (The Sexual Offences Act); Act No. 16/2014 (Sexual Harassment Act); Act No. 3/2012 (Domestic ViolenceAct).
5
Section 2; Act No. 18/2016 (Gender Equality Act).
6
Report of the Working Group on the Universal Periodic review (Human Rights Council; thirtieth session, Agenda item 6 (18September 2015)).
7
Section 2 and 6, Act No.5/2008 (Police Act).
8
http://www.hrcm.org.mv/aboutus/about.aspx#Establishment
9
Section 20, Act No. 6/2006 (Human Rights Commission Act).
10
Article 223, The Constitution of the Republic of Maldives 2008.
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Article 220 of the Constitution of the Maldives states that there shall be an independent and impartial
Prosecutor General of the Maldives. The Prosecutor General has the power to evaluate and asses theevidence presented by the investigating bodies to determine whether charges should be pursued and to
institute and conduct criminal proceedings against any person before any court in respect of any alleged
offence. These responsibilities and the power of the Prosecutor General are clearly defined in the Constitutionof the Maldives, and they have been further elaborated in the Prosecutor’s General Act11.
While the Constitution ensures an independent and impartial prosecution, prompt investigation andprosecution are also guaranteed by the Constitution of the Republic of Maldives. Article 50 of the Constitution
states:After notice of an alleged offence has been brought to the attention of the investigation
authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor
General shall lay charges as quickly as possible.

V. ADJUDICATIONWith the ratification of the new Constitution of the Republic of Maldives, in the year 2008, the Maldivian
Judiciary entered a new phase of transformation and progress. With the separation of powers of the state, it
was established that all judicial powers are vested in the Supreme Court, High Court and such Trial Courts
as established by the law. According to Article 141 of the Constitution of the Republic of Maldives, theSupreme Court is the highest authority for administering justice. Thus, the Supreme Court has the final
authority on the interpretation of the Constitution, the law, or any other matter dealt by a court of law12.
Also, as the guardian of the Constitution and law, the Supreme Court plays a crucial role in the administrationof the court system.
Maldives has a three-tier system for the administration of justice13. The Supreme Court, the High Court
and lower courts. The lower courts, which include at least one Magistrate’s Court (with limited jurisdiction)in each inhabited island, as well as the five specialized courts which sit in Male: The Criminal Court, the Civil
Court, the Drug Court, the Family Court and the Juvenile Court. The Criminal Court as the first instancecourt has jurisdiction to adjudicate all types of criminal cases14. Even though magistrate courts, as the first
instance courts, have jurisdiction to adjudicate criminal cases, an exception has been laid down by the
Judicature Act of the Maldives. Schedule 5 of the Judicature Act stated that the following matters shall not
be adjudicated by the magistrate courts.
(a) Cases related to murder.
(b) Issues specified in the Narcotics Act.
(c) Among offences of theft, embezzlement, deception, fraud and treachery and mugging, those thatinvolve an amount of MVR 100,000 (one hundred thousand) and above, or assets of the same value.
(d) Matters regarding counterfeiting of notes and coins and the contraband of counterfeit money into
Maldives.
(e) Cases related to terrorism.
(f) Charges brought under any of Chapter 1 of the Penal Code under the title ‘Sedition and treason
against the State’.
(g) Cases of rape.
(h) Cases which involve an amount of MVR 5,000,000 (five million) and above, or assets of the same value.

VI. CHALLENGES
The most challenging problem that the Maldives faced in approaching crimes motivated by the intolerance
and discrimination is that there are no specific legal instruments criminalizing crimes motived by intolerance
and discrimination. Though legal instruments against discrimination (as mentioned above) have been
11

Section 15, Act No. 9/2008 (Prosecutor General’s Act).
Article 145 (c), The Constitution of the Republic of Maldives 2008.
13
Act No. 22/2010 (Judicature Act of the Maldives).
14
Schedule 2 of the Act No. 22/2010 (Judicature Act of the Maldives).
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established, awareness programmes are not effectively held on the mechanisms for reporting such crimes.
Investigating and other relevant authorities are not well trained to proceed with the investigation anduncovering evidence of such crimes. Hence many of the crimes motivated by intolerance and discrimination
remain unreported, unprosecuted and, therefore, invisible.
Another crime prevention issue faced by Maldives is the delay in prosecution and the adjudication
process for various reasons, the main reason being not having resources and well-trained support staff.
Failure of the investigating authorities to make the investigation in line with the provisions of theConstitution is another critical issue. Article 52 of the Constitution of the Maldives states: “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 suchstatement or evidence is inadmissible in evidence.” Hence, the investigation itself becomes unconstitutional
if not carried in accordance to the Constitutional provision.
Delay in the investigation, prosecution and in adjudication amounts to disposal of evidence and witnesses
being reluctant to testify against the offenders as they are being threatened. However, the Criminal Procedure
Act15 has taken measures to lessen such problems as it laid down a timeframe for the investigation, prosecution
and adjudication process. It also established a mechanism for witness protection such as suppression ofidentity, testimony through video-link and use of voice distortion.
The Ministry of Gender and Family has the mandate to facilitate the provision of social, psychological andlegal services to persons reporting deprivation of rights resulting from gender discrimination or violence, butthey do not have the investigatory power which further delays the justice to the victims of domestic violence.

VII. VIOLENCE AGAINST WOMEN IN MALDIVES
Like in any other country, violence against women is a crime Maldives is struggling to deal with. It is aserious issue and often a hidden issue where the victims silently live in humiliation. Giving voice to the issue
is a first step in combating it, and the Domestic Violence Act, enacted on 23 April 2012, is a milestone in
making the existence of the issue in Maldives loud and clear. The creation of the Domestic Violence Act
paved way to establish stakeholders in combating violence in the Maldives. The Domestic Violence Act
defines certain acts conducted between individuals in a domestic relationship to be an act of domestic
violence. Section 3(a) of the Domestic Violence Act defines what constitutes such domestic relationship while
Section 4(a) lists the individual acts which, when conducted between two people, can be considered an act ofdomestic violence. A major outcome of the Domestic Violence Act is the introduction of “protection orders”
detailed in sections 7 and 8 of the Act. Under the Act, victims are able to request and obtain emergency andpermanent protection orders against the perpetrators.

VIII. CASES OF DOMESTIC VIOLENCE
Name, place and specific details have been omitted from the below-mentioned cases to ensure theconfidentiality of the victims.
1. A case filed by the Applicant against her husband for committing various domestic violence acts, at
the Family Court of the Maldives on 2017 for a protection order. According to the case report thehusband committed physical, psychological and verbal abuse along with intimidation and many otheracts and caused the children to witness the domestic violence against the Applicant. Here, the court
issued a protection order for a period of one year as the domestic violence acts committed against the
Applicant were proved by the witnesses’ statements and by the reports presented by the Maldives
Police Services stating that 2 incidents of violence against the Applicant by her husband were lodged
and investigated and sent to the Prosecutor General’s office for prosecution.
With regard to this case, it is noted that the perpetrator’s acts were reported to the relevant investigating
authority and are being investigated but sadly our records show that the perpetrators are not prosecuted.
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Act No. 12/2016 (Criminal Procedure Act)

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2. A case filed by the Prosecutor General against the Respondent at the Criminal Court for breaching
the Protection Order issued by the Family Court against the Respondent to avoid committing any act
against his ex-wife, that would suffice as a domestic violence act. He denied the charges against him.
To prove the case, the Prosecutor General presented the ex-wife, her father and sibling as witnesses,
but in their statements, they supported the Respondents’ stand. Hence, the Court decided that the
Respondent was not guilty of the charge.
In this case, it is evident from the case report that the witnesses, especially the father, favoured the
Respondent as he did not want the Respondent to be prosecuted with criminal charges as the child of the
Respondent is in the care of the ex-wife and if prosecuted, the child might suffer.
These case studies give us a clear indication that various forms of violence exist in Maldives and that also
indicate that there are very limited services available to the victims. The case studies also show thatperpetrators are rarely prosecuted or punished. Hence, they are not held accountable for their actions.
3. A case filed by the Prosecutor General at the Criminal Court of the Maldives, where the respondent
was reported by his wife, for hitting her and pushing her from a jetty. The respondent hit the wife’s
head, whereby the respondent’s wife fell onto a boat nearby and hit her mouth which rendered her
unconscious. It was proved by the medical reports that the respondent’s wife suffered severe injury
to her mouth and that her leg was injured by the respondent’s acts. It was decided that the respondent
was guilty and sentenced to pay a fine of MVR 200, as this was his first criminal offence.
This clearly is a case of violence against women which can be prosecuted under the Domestic Violence
Act, but the respondent was prosecuted under the Penal Code for battery. This case raised concerns among
the public and the Court was criticized for its judgment. But it is important to note that the court decides
cases based on the facts presented before it.

IX. RECOMMENDATIONS•

 evising and improving the legislative framework to facilitate the anticipated results, so that theRprosecution can prosecute under the relevant legislation to achieve the results from the specialized
acts such as the Domestic Violence Act.

•

Creating school and society-based awareness programmes across all age groups on respectful
relationships and responses to domestic and family violence.

•

The provision and availability of supportive housing models to assist victims of domestic and family
violence to find safety for themselves and their children.

•

Focus on long-term care of the victims, such as rehabilitation and reintegration, and measures todecrease the chances of reoccurrence of any type of further abuse against women.

•

Establish a good psychosocial support system at a national level.

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