Does the Maldivian government have to release Colonel Nazim?

Written by: Mohamed Abdullah

The UNHRC Working Group on Arbitrary Detention (WGAD) has given the recommendation to release Colonel (Rtd.) Nazim.

Is this binding on the government of Maldives and does the constitution of Maldives allow such actions?

Undoubtedly, the WGAD can only give recommendations, it does not have the authority to go above the Maldivian constitution.

Even in Julian Assange case the UK Secretary of State for Foreign and Commonwealth Affairs, Philip Hammond, rejected the group verdict and called the group's claims irrelevant stating that the finding is not binding on British law.

Former two presidents of Maldives have also called for his release but it can only be viewed as an act against the Maldivian constitution and a disrespectful action towards its citizen’s. The sincerity of the act is highly questionable. Former president Nasheed is in hiding after fleeing from a jail sentence and has a vested interest in the situation. The release of one prisoner is an opportunity for all. Former president Maumoon is fighting a popularity contest with his half-brother, the incumbent president Yameen. The popularity achieved by President Yameen during his short term in office is enormous and increasing.

This can also be seen as a desperate attempt by President Maumoon, who have allegedly accepted bribes from President Nasheed to overthrow the current President Yameen, to actually release President Nasheed, as WGAD have given a similar recommendation to release President Nasheed.

Such irresponsible calls only open doors for foreign intervention in our affairs and the constitution does not allow the release of prisoners jailed after due legal process.

A closure scrutiny on the findings of WGAD reveal many flaws and factual errors.

WGAD claims that the state did not prove that the gun in Nazim’s possession belonged to him. Nazim was charged with a strict liability crime, due to the serious nature of the crime, under this law the burden of proof is with the defendant. All jurisdictions have prescribed offenses of strict liability in order to fight certain kinds of criminal offences, and these crimes in many states include possession of firearms, among offenses such as narcotic drugs. In case of strict liability offenses, the legal principal universally accepted and applied in democratic societies throughout the world is that, once the objective element of the crime is proven against the accused by the prosecution, there is no need to prove the mental element.

Possession of firearms was prescribed as a strict liability crime by Law Number 4/75 in the Maldives in 1955, with Section 9 of the Law specifically stating that once a person is found in possession of a firearm, the onus of proving how it came to be in his possession, so as to avert criminal liability is upon him.

Even in Singapore if someone is arrested for drug trafficking, the burden of proof shifts to the defendant, the prosecutor does not have to prove whether the drugs in the bag are the defendant’s drugs.

Hundreds of persons have been prosecuted under the above-mentioned law in the Maldives since the year 1955, and judges have uniformly and consistently held accused individuals guilty upon establishment of the objective element of the crime by the prosecution, without the need for the prosecution to prove the mental element. In the case of Colonel Nazim, the prosecution proved that Colonel Nazim had firearms in his possession, and though the chance was given, Colonel Nazim and his attorneys were unable to justify that possession before the court.

It is clear that Colonel Nazim was treated in accord with the principles relating to strict liability offenses, and that his case was handled by the judges in the same way cases of strict liability offenses had been handled by the Maldives Judiciary since 1955. The WGAD has not shown why the case of Colonel Nazim should be an exception. In fact, the WGAD demand to make an exception for Colonel Nazim is nothing but a call for the Maldivian Judiciary to treat people differently and to undermine the law.

Another claim made by WGAD is that the former Defence Minister Nazim is a political opponent. However, when he was arrested and charged for possession of fire arms, he was the Defence Minister of President Yameen’s cabinet, the most trusted position in the Cabinet.

WGAD has requested to visit Maldives to further investigate the case but the irony is they could have done this before releasing a factually flawed report.

According to the group the main reason for judicial system failures in Maldives is because of the sudden and quick change to the new constitution in 2008. The WGAD ‘s report acknowledges that time, education and a good management system is required to address the shortcomings of the Judiciary. There is no role or failures of the current administration in it. Rather, the failure is mostly on the part of President Nasheed, who did not bother to enact much needed laws, regulations and increase resources to address the limitations of the Judiciary’s well-functioning.

The current Supreme Court bench of Maldives consists of well-educated and capable judges, comparable to the best in Asia region. However, the government acknowledges that every judge in lower courts may not have a degree and the government is fully committed in addressing these issues.

Understandably it takes time to train people - the judiciary cannot be overhauled overnight.

So, the big question is “who is in violation of the law”?

Undoubtedly, WGAD’s attack on the Maldivian Judiciary can be clearly seen as a fragrant violation of the sovereign rights of an independent State which is a member of the UNO, in disregard of the UN Charter. The WGAD has no authority to interfere and intervene in the judicial systems of UN member states, and to express unfounded opinions on the judgments of the courts in those states. Independence of the Judiciary is a principle recognized by the UNO

and attempts by bodies such as WGAD to interfere with decisions of the courts of Maldives would be considered as nothing but acts of intimidation against small countries such as Maldives.