OFFICIAL COMMENTARY OF THE MALDIVIAN PENAL CODE & SENTENCING GUIDELINES

For each Section of the Code, there is corresponding commentary. Each Section’s commentary begins by listing any corresponding provisions from Maldivian law, including the previous Penal Code (1966), that are closely related to the Section under discussion. Following that, there is a “general” discussion of the Section, which examines how it is supposed to function and any peculiarities that are present. In addition, some Sections have commentaries that include hypothetical examples to highlight important nuances regarding when it applies and when it does not. The commentary for each Section concludes with a discussion on its “relation to other laws.” This portion of the commentary begins by elaborating on the Section’s connection with other Maldivian law; how it is consistent with or departs from these other laws. After discussing the connection with Maldivian law, the Commentary explains the relationship between the Section and Islamic law. As per the Constitution (2008), the Code has no provision that is contrary to any tenet of Islam. Furthermore, its provisions are consistent with Islamic legal opinions and numerous authorities are cited throughout the Commentary to support this. The citations include references to the Qur’an and various collections of hadith, as well as to scholars (ulama) both past and present. Most importantly, this Code incorporates a holistic understanding of Islamic criminal law into its provisions beyond just hudud offenses and punishments. The Code includes principles and legal maxims (qawa’id fiqhiyya) developed and used by jurists (fuqaha) over the course of Islamic history to guide the enforcement and adjudication of laws, as well as the application or avoidance of punishment. These guidelines are instrumental for understanding and appreciating the true spirit of Shari’a.

 The Penal Code is made up of three parts.  Part I, the General Part, contains all of the general provisions affecting liability and punishment.  Part II, the Special Part, defines all offenses.  Part III contains the rules governing sentencing.

Although there are limits to how readable a comprehensive code can be, the Penal Code has been written and translated with the goal of allowing the average person to read and understand it.  Therefore, as far as possible, plain language has been used instead of legalistic terms known only to people with legal education.  The organizational scheme of the Code is also designed to make it as accessible as possible.  Offenses in the Special Part are grouped by subject matter.  For instance, all offenses relating to the person will be found in Chapters 100 to 200, all property and privacy offenses will be in Chapters 200 to 300, etc.  Within this broad framework, there is further subject matter division.  For example, all of the offenses relating to homicide are collected in Chapter 110 (Homicide Offenses), Chapter 120 contains assault, threat, and endangerment offenses, Chapter 130 contains sexual assault offenses, and Chapter 140 contains restraint and coercion offenses.  Similarly, Chapter 210 contains theft offenses, Chapter 220 contains property offenses, and Chapter 230 contains criminal intrusion offenses.  Organizing the offenses by subject matter reduces the likelihood of inadvertently creating overlapping offenses through later amendments.  Even if a person is not an expert on the Penal Code, they can easily determine what conduct is already criminalized and what is not.  Additionally, the system for numbering provisions is designed so one can quickly know the location and function of a Section in the Code.  All provisions in the General Part have two-digit numbers, the provisions in the Special Part have three-digit numbers, and the provisions in the Sentencing Guidelines, Part III, have four-digit numbers.  This also allows for the Code to expand or contract without disrupting its overall organization.

 Each provision in the Code will generally contain a definition of the offense, any exceptions that might apply, how the offense should be graded, what (if any) aggravating or mitigating factors exist and definitions of key terms within the offense.  The Code uses nine classes of offenses to reflect an offense's relative seriousness.  Section 90 (Classified Offenses) provides five categories of felonies, Class 1 through Class 5, with Class 1 being the most serious; three categories of misdemeanors, Class 1 through Class 3, with Class 1 being the most serious; and a separate category of violations, which are only quasi-criminal and are not serious enough to warrant imprisonment.  Every offense in the Code is categorized as being in one of these nine categories.  Such a categorization system simplifies the Code because instead of having to include special punishment provisions for each offense, the Code can provide a relatively complete set of punishment rules applicable to each class of offense.     

Every provision in the General Part of the Code applies to every offense in the Special Part.  This organizational scheme is used by modern penal codes to increase comprehensiveness without reducing clarity and readability.  Instead of having to define a special rule addressing complicity, general defenses, inchoate offenses, or any other general liability issue in relation to each offense, the Code includes a single provision addressing those issues in the General Part, and that single statement of the liability rule applies to every offense.  

Chapter 10 (Preliminary Provisions) of the General Part contains very general provisions relating to the application of the Code.  Although a comprehensive code attempts to provide all the necessary rules to adjudicate any case, it is inevitable that no written document can conceive of every possible factual situation.  There will be times when courts will have to interpret the Code’s provisions.  Section 11 (Principle of Construction; General Purposes) is a direction to judges on how they are to interpret the provisions of the Code.  To further the goal of vesting lawmaking authority in the legislature rather than the judges, Section 12 (Non-Statutory Crimes Abolished) makes it clear that the offenses defined in the Code are the only available offenses.  Therefore, under the Code, judges do not have the authority to create new crimes, although they continue to play the important role of applying the facts of each case to the rules set out in the Code.

Chapter 20 (Basic Requirements of Offense Liability and Defenses Related to the Offense Harm or Wrong) collects some very basic and important rules about liability requirements.  For example, Section 24 (Culpability Requirements) defines the culpability terms that are used to define offenses.  Only four culpability terms – purposeful, knowing, reckless, and negligent – are used throughout the Code.  Section 24 provides a detailed definition for each of those terms.  Chapter 30 (Imputation of Offense Elements) contains special rules for establishing liability, including the complicity rules in Section 30 (Accountability for the Conduct of Another). 

Chapters 40, 50, and 60 address general defenses.  Chapter 40 defines justification defenses, such as law enforcement authority and use of defensive force to protect people or property.  Justification defenses exculpate even though a person’s conduct might otherwise constitute an offense but special justifying circumstances mean that the conduct is to be tolerated, even encouraged, by the law.  For example, using force necessary to make an arrest or using force against an attacker in self-defense might normally be assault, but because the conduct is done under justifying circumstances, the Code provides a complete defense to liability.  Chapter 50 defines excuse defenses, which are conceptually distinct from justification defenses.  Excuse defenses exculpate even if a person’s conduct is wrong but, because of the person’s special conditions, the person is blameless for the offending conduct. 

Chapter 60 defines nonexculpatory defenses, a third and final category of general defenses.  These defenses are different from both justifications and excuses; they apply in cases in which the person has done the wrong thing and may well be blameworthy, but nevertheless receives a defense because of some other important interest.

 Chapter 70 sets out the rules for liability of corporations and other business associations.  Chapter 80 (Inchoate Offenses) defines the general offenses of attempt, solicitation, and conspiracy, which provide for liability when a defendant engages in conduct towards committing an offense but the offense is not completed.

 Part III contains the Code’s sentencing guidelines.  These take up where the grading judgments contained in the General Part and Special Part leave off and give direction to judges in making the specific sentencing decision.  The center of the guidelines system is the guideline grid in Section 1002 (Guideline Sentence Table).  The columns of the table represent the possible grades of an offense – five grades of felonies, and three grades of misdemeanors.  The rows represent ten sentencing levels – the baseline sentence, six levels above the baseline, and three below the baseline.  For each grade, the baseline sentence is two-fifths of the statutory maximum penalty.  For example, a Class 4 felony has a statutory maximum penalty of four years and a baseline sentence of one year, seven months, and six days.  The baseline sentence is the default sentence for any offense of that grade, but that baseline sentence can be adjusted either up or down in individual cases based on applicable sentencing factors.  

The Code contains sentencing factors within the definitions of specific offenses as well as a number of general sentencing factors that may apply to any number of offenses.  In addition to the sentencing factors found in specific offense definitions, Chapter 1100 (General Adjustments to Baseline Sentence) lists general ways in which a sentence may be aggravated or mitigated.  In many cases, there may be no mitigators or aggravators that apply.  The Code states the most obvious factors relevant to sentencing but over time, as the system is used, judges and legislators are likely discover other sentencing factors that should be added to the Code.  As noted, the guideline sentence is determined by starting with the baseline sentence for the grade of the offense and then adjusting that sentence by adding levels for any applicable aggravators and subtracting levels for any applicable mitigators.  Once the guideline sentence is determined from the grid in Section 1002, a judge may impose a sentence of either a term of imprisonment or may convert the guidelines sentence term of imprisonment into a non-incarceration punishment of equal amount, using the punishment method equivalency table in Section 1005.  

The sentencing guidelines are meant to be guidelines; they are not binding.  A sentencing judge must calculate what the sentence would be under these guidelines, but then is free to give a different sentence than the guidelines provide.  This can be any sentence the judge deems appropriate as long as it is less than the statutorily authorized maximum penalty.  However, if the judge gives a sentence that deviates from the guideline sentence by more than two levels in either direction, then the judge is required to explain in writing the reasons for the deviation.  By generating a guideline sentence, but allowing the judge to impose a different sentence if justified in writing, the guidelines system attempts to strike an appropriate balance between uniformity in application and flexibility.  On the one hand, the sentence should depend on what the offender has done and what kind of a person he is; it should not depend on which particular judge happens to be doing the sentencing.  On the other hand, every case is a little different, and it is impossible for any system to take account of every possibility.  Some degree of flexibility must be maintained.

Additionally, the judges’ explanations of their deviations from guideline sentences may be quite useful to the long-term health of the system.  A pattern of regular deviations may signal to the People’s Majlis that some adjustment or refinement of the guidelines is needed.  For example, the pattern might suggest a new aggravating or mitigating sentencing factor that ought to be added to the guideline system to reflect the wisdom of the sentencing judges expressed in the pattern of deviations.

 In addition to providing guidance in determining the appropriate amount of punishment, the Sentencing Guidelines also address another important aspect of the sentencing decision:  the method by which punishment should be imposed.  While imprisonment is often an appropriate method of punishment, there are many cases in which some other form of punishment, such as house arrest, community service, a fine or intensive supervision might be appropriate.  A common criticism of such alternative punishment methods, especially community service, is that they allow offenders to avoid the punishment they deserve.  The Code attempts to overcome resistance to non-incarceration punishment by assuring that every offender receives the full amount of punishment that he deserves even though it may not be in the form of imprisonment.

This Chapter outlines the framework for the Penal Code.  Section 11(a) describes the broad interpretive principles to be employed for understanding the language in the 2014 Maldivian Penal Code (henceforth “Code”).  Section 11(b) describes the objectives of Islamic law, which are used as the operating mechanism for this Code.  Section 12 prevents the promotion of any criminal law outside of this Code.  Section 13 establishes the jurisdictional reach of the Code.  Section 14 promotes the right of individuals to seek civil remedies outside of the criminal justice system.  Section 15 notes the necessary elements for proving guilt.  Section 16 requires legislative review of monetary amounts in the Code to insure adequate renewal of previous amounts.  Section 17 serves as an index to key terms used in the Code.  Section 18 provides guidelines on how to deal with other laws and provisions that might contradict what is contained in this Code.

Corresponding Provision(s):  Maldivian Constitution (2008), Chapter 2, Provision 59

Comment:

Generally.  Subsections (c) and (d) prevent retroactive application of new standards to offenses committed prior to the enactment of this Code.  Which law, prior laws or this Code, apply to a crime depends on the effective date.  The effective date is one year after this Code passed Parliament.  Only crimes committed after the effective date will be covered by this Code.  Crimes committed before the effective date will have the 1966 Penal Code and prior criminal laws applied to them. However, if the punishment for an offense has been reduced in this Code as compared to prior law, an offender is entitled to the lesser punishment.

Relation to other laws.  The Maldivian Constitution (2008) supports this Section: “No person shall be found guilty of any act or omission which did not constitute an offence under Islamic Shari’ah or law at the time committed.”[1]  This corresponds to the fundamental Islamic legal

concept of taklif, which requires, among other things, “knowledge of the person under legal obligation about the command.”[2]  The same provision in the Constitution also notes that “if the punishment for an offence has been reduced between the time of commission and the time of sentencing, the accused is entitled to the benefit of the lesser punishment.”  

Corresponding Provision(s):  Maldivian Constitution (2008), Chapter 1, Provisions 2 and 10, Chapter 2, Provision 54; Maldives Penal Code (1966), Provision 28

Comment:

Generally.  The default guideline for interpreting elements of the Code is consistency with the purposes of the Code, as described in Subsections (b) and (c) of this Section.  One of the general purposes is the protection of individual and public interests arising from Islam and “public norms” regarding right and wrong (Subsection (c)(4)).  

Relation to other laws.  The general purpose of the Code is similar to the purpose of Islamic law, that is, to protect “religion, life, lineage, mind, and property.”[1]  This parallels prior Maldivian law, which encompassed these purposes by defining the word “hurt” to mean “any injury or loss caused in contravention of the law to a person’s body, his mind, his person, his reputation, his name or his property.”[2]  The Maldivian Constitution (2008) further states:  “The Maldives is a sovereign, independent, democratic Republic based on the principles of Islam.”[3]   The Constitution goes on to say:  “The religion of the State of the Maldives is Islam. Islam shall be one of the basis of all the laws of the Maldives.”[4]  Therefore, the guiding principles in this Code are based on the Islamic faith, the teachings of Islamic scholars and jurists, and prior Maldivian laws drawn from this system of beliefs. 

Section 11(b)(1)’s stated goal of creating “penalties that are proportionate to the blameworthiness of the offender and the seriousness of the offense” is derived from the opinion of Muslim jurists that “the evildoer must be punished in proportion to the evil created; the Qu’ran states that the recompense of an evil is a like evil.”[5] 

Section 11(b)(2) safeguards “guiltless conduct from condemnation,” following Islamic principles governing testimony against adulterous women.  Most jurists cite the following Qur’anic passage to support this idea:  “Those who accuse believing women, unmindful though innocent, are cursed in this world and the next and shall receive a painful torment.”[6]  

In Section 11(b)(3), what is “arbitrary or oppressive” in relation to the treatment of prisoners will be determined on the basis of Maldivian customs and Islamic law.  

Under Islamic law, jurists have ruled that the punishment must be proportional to the crime and cannot cause “more pain or injury.”  In the traditional system of corporal punishment, adequate expertise was required by the individual administering the punishment so as to avoid torture.[1]  The Caliph Ali visited prisons to insure proper treatment of prisoners, and the jurist Abu Yusuf noted that prisoners must be provided the “basic necessities of life.”  Jurists are in agreement that there should be no violation of the integrity of the prisoner’s “beliefs, mind, body and dignity.”[2]  Ibn Qayyim al-Jawziyya notes that prisoners should not be confined to “narrow places,” but simply prevented from “inflicting harm on others.”[3]  The Maldivian Constitution (2008) states: “no person shall be subjected to cruel, inhumane or degrading treatment or punishment, or to torture.”[4]     

In Section 11(b)(4), the notion of “fair warning” finds support among Islamic jurists who state that “the accused must first be given the opportunity to know the law, and thus . . . no punishment shall be imposed without prior law.”[5]  The Qur’an supports this principle:  “And nor shall we be punishing until we had sent them an Apostle.”[6]  This passage is interpreted to proclaim that with the Apostle comes the “law,” which people were unfamiliar with prior to his arrival.

 Section 11(c)(2)’s concept of deterrence is supported by Islamic law, in that, as Mohamed El-Awa states, “vindication of the values . . . demands that the law deter the individual offender and teach fellow Muslims the penalty for wrongdoing.”[7]  

In Section 11(c)(3), the term “confinement” is meant to encompass imprisonment and other related forms of punishment.  In Islamic law, prevention of “recurrence of serious criminal behavior” is accompanied by punishment in order to help the offender “repent his wrongs.”[8]  The purpose of rehabilitation is not squarely addressed by the prior Penal Code (1966).  However, rehabilitation comports with preventing recidivism by changing the criminal’s behavior and encouraging him to refrain from criminal activity.

Corresponding Provision(s):  None

Comment:

 Generally.  This Section adopts the principle that only offenses that are defined by statute as criminal can be punished.  No person’s conduct can be prosecuted as a crime unless this Code or a statute of the Maldives has criminalized it.  The purpose of this Section is to establish this Code as a comprehensive and easily referenced source of law.  The Code allows for the public to have fair notice of the laws which apply to them and to be confident that the laws will be applied uniformly regardless of the judge presiding over the case.  This ensures that the public is better able to understand criminal statutes and thus abide by the law.  In addition, although this Code is comprehensive, the Parliament has the power to add crimes to the Code through the legislative process.  

 Relation to other laws.  This Code seeks to build upon the 1966 Penal Code and to establish a comprehensive and easily referenced source of law.  Codification is a trend in all jurisdictions today, including Islamic countries such as Egypt, Malaysia, the United Arab Emirates, Pakistan, and others.  The goal is to centralize the grounds of penal liability in code form, consistent with the requirements of a modern state.

Corresponding Provision(s):  Maldives Penal Code (1966) Provision 2, 3 and 5

Comment:       

Generally.  This Section outlines the jurisdiction of the Code.  This Section addresses both conduct within the Maldives and conduct of Maldivian citizens outside of the country.  Subsection (a)(1) details the basic territorial jurisdiction of this Code for both substantive and inchoate offenses.  Subsection (a)(2) provides for passive personal jurisdiction, namely that this Code applies to all offenses resulting in harm to the citizens, agents, or property of the Maldives, irrespective of the crime’s location.  Subsection (a)(3) extends jurisdiction to all offenses committed in cooperation with a Maldivian citizen or resident irrespective of location or other concerns.  Subsection (a)(4) recognizes universal jurisdiction over gross violations of international law as is the obligation of many nations, including the Maldives.  Finally, Subsection (a)(5) establishes jurisdiction over vessels or aircraft flagged or registered in the Maldives.

Subsection (b) specifies that jurisdiction is not an element of any offense.  Although proper jurisdiction is required for a valid conviction, the prosecution need not prove jurisdiction to a practical certainty nor does any culpability requirement attach to purely jurisdictional concerns.

Subsection (c), like Section 14 (Civil Rights to Recovery Preserved), ensures that this Code is not construed to affect the process of civil suits and judgments.

Subsection (d) precludes a defendant’s challenge to the State’s decision not to extradite him to another jurisdiction.  Even if other countries also have jurisdiction over a particular defendant, the jurisdiction of the Maldives is not threatened. 

Subsection (f) extends the jurisdiction of the Maldives to include its “exclusive economic zone” which is defined under international law or under particular treaties.  

Relation to other laws.  Subsection (a) follows the language in Provision 2 and 3 of the prior Penal Code (1966), which place liability on every person subject to Maldivian law, whether they are inside or outside of Maldivian territory.[1]

Subsection (a)(2) follows the language in the prior Penal Code (1966), Provision 5, but omits the phrase, “or to do everything that is possible to expel him from the Maldives where it is expedient for the purposes of preserving the interests of the Maldivian people or a section thereof.”[2]  This language is unnecessary because Chapter 90, governing offense grades and their implications, provides a classification of all criminal offenses into grades for purposes of determining the extent of liability and punishment.  In addition, sentencing guidelines provisions determine which specific punishments may be applied.

Subsection (a)(3) follows the language in the prior Penal Code (1966), Provision 3 and the “Law Governing Maldivians Who Travel Abroad.” 

 Subsection (c) allows for the court to exercise its discretion in handling cases relating to noncompliance with legal rulings or protocol.  

 Maldivian law includes the “Law on Uninhabited Islands.”  This Code does not distinguish between inhabited and uninhabited islands for purposes of consistency and simplicity.   

Corresponding Provision(s):  None

Comment:

 Generally.  This Section distinguishes between civil remedies and criminal punishment for criminal conduct.  Regardless of the outcome or progress of a criminal prosecution pursued by the government under this Code, the victims of the crime may still pursue civil remedies.   

 Relation to other laws.  Civil remedies and criminal punishment are not separated in prior Maldivian law.  However, Islamic law does separate remedies; punishment is categorized into that deserving either physical retaliation (qisas) or monetary compensation (diya).[3]  This roughly corresponds to the distinction between criminal and civil remedies, respectively.  Monetary remedies for the crime of homicide would be civil and civil prosecution would be victim-driven.  Physical punishment, for instance prison terms, for commission of homicide would be State-driven prosecutions because of the threat they pose to the peace and order of the Maldives.  Civil remedies continue to exist for these and other offenses, irrespective of whether the government initiates a prosecution of them under the Code and irrespective of the outcome of any prosecution.  The judge would retain the discretion to require monetary compensation as part of the punishment, similar to Islamic law. 

Corresponding Provision(s):  None

Comment:

Generally.  This Section explains the burden that each party carries in a criminal prosecution and establishes the basic tenet that all defendants will be presumed innocent until the offense they have been charged with has been proven by the prosecution.  The prosecution must prove each element of an offense to a practical certainty, with the exception of special requirements stipulated for offenses relating to unlawful sexual intercourse.  These special requirements are outlined in Section 411(a)(2).  No requirement of proof beyond those defined in this Code may be imposed.  “Practical certainty” means the highest standard of proof, which requires that the court be virtually certain of the proposition’s truth.  “Preponderance of evidence” means proving something is more likely than not.

When a Section of this Code establishes a rebuttable presumption for an item for which the prosecution bears the burden of persuasion under Section 15(b)(2), the Court shall presume that the prosecution has established the item if the facts giving rise to the presumption are proven to a practical certainty.  It should be noted that, the “exceptions” noted in Section 15(b)(2)(B) refer to exceptions mentioned in the specific offenses part of the Code.  However, the defendant will then have the opportunity to rebut that presumption by a preponderance of the evidence.  When a Section of the Code establishes a rebuttable presumption for an element for which the defendant bears the burden of persuasion under Section 15(b)(3), the Court shall presume that the defendant has established the element if the facts giving rise to the presumption are proven by a preponderance of the evidence.  The prosecution will then have the opportunity to rebut the presumption. 

For example, under Section 53(b)(2), the Court shall presume that the defendant has established that he satisfies the requirements of the general defense of immaturity in Section 53(a) if his age, the fact giving rise to the presumption, is proven by a preponderance of the evidence.  The prosecution then has the opportunity to rebut the presumption that the defendant satisfies the requirements of Section 53(a).

Relation to other laws.  Section 15(a) is derived from the consistent view of Muslim jurists that all elements of a crime must be proved in order to obtain a conviction.  In support of this important principle, many jurists cite the hadith (Prophetic tradition), “[a]void condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it.  If the Imam errs, it is better that he errs in favor of innocence than in favor of guilt.”[4]  Additionally, they cite a hadith that encourages avoiding “circumstantial evidence in Hudud.”[5]  Finally, it is a “well-established principle in retaliatory (qisas) crimes that circumstantial evidence favorable to the accused is to be relied upon, while if unfavorable to him it is to be disregarded.”[6]  This “presumption of innocence applies to lesser discretionary (ta’zir) offenses as well.”[7]   

 Section 15(b)(2) is supported by the message sent by Caliph Umar b. al-Khattab to one of his judicial appointments, Abu Musa al-Ash'ari:  “The burden of proof is on the accuser, and he who denies the accusation should be asked to take the oath.”[8]  Jurists also cite the hadith that “the burden of proof is on the proponent; an oath is incumbent on him who denies.”[9]  Section 15(b)(2) is also consistent with the general requirement of Islamic law that the accuser meet a burden of persuasion that, if met, then shifts the burden to the accused.[10]  Commenting on the statement by the Caliph ‘Umar b. al-Khattab that “in Islam no one can be imprisoned except in pursuance of justice” the contemporary scholar Abul A‘la Mawdudi has explained that this means “due process of law” and that “what has been prohibited and condemned is that a man be arrested and imprisoned without proof of his guilt in an open court and without providing him an opportunity to defend himself against those charges.”[11] 

Corresponding Provision(s):  None

Comment: 

Generally.  This Section takes into account that due to factors like inflation, the value of a particular monetary sum will not be the same over time.  Hence, this Section requires Parliament to review the monetary amounts periodically.

Relation to other laws.  None.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 28

Comment: 

Generally.  This Section collects defined terms used in Chapter 10 and provides crossreferences to the Sections in which they are defined.  Furthermore, this Section provides a full list of all terms defined anywhere in the Code, with a cross-reference indicating where the definition may be found.  In addition, this Section provides definitions for terms used frequently throughout the Code.

Relation to other laws.  Many of the definitions found in Provision 28 of the prior Maldives Penal Code (1966) are represented here.  Definitions such as those found in Provisions 28(b), 28(e), 28(i), 28(j), 28(n), 28(o), 28(t), 28(v), and 89 are not defined in this Code and should be given their regular, everyday meaning.  For discussion of the relationship between Chapter 10’s other defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

Corresponding Provision(s):  None

Comment: 

Generally.  This Section notes that the following laws will be annulled once the Code comes into effect: Maldives Penal Code (1966), Chapters 1, 2, 3 & 4 [Law No: 1/81, Law No: 21/81, Law No: 1/66, Law No: 10/68].  Additionally, subsection (b) gives precedence to this Code over any Act or provisions that contradict the offences or procedures contained in this Code.  Subsection (c) requires the Government notify Parliament of any contradictory laws and provisions six months prior to the effective date of this Code.  Parliament is tasked with the responsibility of determining how to deal with the conflicting laws and provisions, but this does not preclude the Government from making recommendations on how to deal with conflicts.  The purpose of this provision is to support one of the goals of codification, which is to provide clear and fair notice to citizens of exactly what conduct is prohibited.

Relation to other laws.  None.

 This Chapter outlines the basic requirements for liability and the necessary elements of an offense.  Section 22 describes the relationship between conduct and result, which bears relation to Islamic law.  Section 24 outlines the possible mental attitudes a person may have in relation to a particular crime.  These are based on modern constructions and have been adopted by Muslim countries.[1]  Sections 25, 26, 27, and 28 outline factors that can negate culpability. 

Corresponding Provision(s):  None

Comment: 

Generally.  Section 20 establishes the basic requirements for liability for an offense under this Code.  The principle underlying this Section is that no one may be prosecuted for a crime if they have not fulfilled all the elements of the offense as defined in the Code or if they are eligible for an exception, defense, or bar to liability provided for in the Code.  This Section operates so as to bar criminal prosecution for conduct that is not explicitly prohibited by the Code, as well as to bar acquittal for reasons not explicitly provided for in the Code.  Section 20(a) provides that an actor may be liable for an offense only if all of the elements of the offense are satisfied, except where a provision in Chapter 30 operates to impute a missing element.  

The following example illustrates a situation where all elements of the offense are not satisfied:

Example 1:  X causes the death of Y, but does so without recklessness.  Section 111 outlines the requirements for manslaughter.  Specifically, there are two elements to the offense: the act resulted in another’s death, and the culpability requirement of recklessness.  X would be precluded from liability for Y’s death by Section 20(a) because he does not satisfy the culpability element of the offense since he acted without recklessness.

The following example illustrates a situation where some elements of an offense are imputed:

Example 2:  X, who is voluntarily intoxicated, causes the death of B by engaging in substantially risky activity, although X was unaware of the risk because of the intoxication.  In these circumstances, the element of recklessness may be imputed under  Section 31 (Voluntary Intoxication): even though the element of recklessness is absent, it would be imputed by X’s voluntary intoxication.  X may meet the requirements for liability for B’s death according to Section 20(a) because the missing element of the offense (recklessness) has been attributed vicariously to him.

Section 20(b) provides that a person will not be liable for an offense if they are exempted from liability by a provision in Chapter 80 (Inchoate Offenses) or a specific exception in an offense definition in Part II of the Code.  Sections 84 and 85 provide general exceptions to certain types of liability for victims and, in certain circumstances, for persons who renounce their intent to commit a crime before it has been committed.  

The following example illustrates an exception to liability under Chapter 80:

Example 3:  C purchases a steel pipe for D to aid D in assaulting an unknown person. D subsequently uses the steel pipe to assault C.  Section 84 exempts victims from liability for conspiracy offenses under Section 81.  Even though C purchased the steel pipe for D to attack someone, since C is the victim of D’s crime, he would be exempted from liability for conspiracy to commit assault.  As such, he would be precluded from liability under Section 20(b).  

Additionally, Section 20(b) provides that a person is not liable for an offense if they satisfy a bar to liability contained in the provision.  These bars to liability are specific to the offense. 

The following example illustrates a bar to liability contained in a provision:

Example 4:  E is a doctor providing life-sustaining medical care to F, a terminally ill patient.  F and his family ask E to stop providing medical care.  E withdraws the care, and F subsequently dies.  Under Section 113(b)(1), E has committed an offense by knowingly aiding F in causing his own death.  However, Section 113(b)(2) exempts E since he is a medical professional respecting the wishes of the patient and his family in withholding a life-sustaining procedure.  Thus, conviction of E would be precluded under Section 20(b).

Section 20(c) notes that any defense provided in the General Part will preclude liability even though all of an offense’s elements are satisfied or imputed.  Such defenses—found in Chapters 20, 40, 50, 60, and 80—differ from the exceptions covered by Section 20(b) in that they present non-specific defenses (and thus apply to any offense, rather than to a particular offense or group of offenses).  

The following example illustrates a defense in Chapter 20(c):

Example 5:  F touches G, but G has consented to the touching.  Consent, under Section 27, is a defense to liability.  Since F has satisfied one of the defenses in Chapter 20, he is precluded from liability by Section 20(c).

            The following example illustrates a general defense in Chapter 40:

Example 6:  H attacks J with a knife.  J, in fear of his life, defends himself and shoots H with a gun.  Under the justification defense provided in Section 45 (Defense of Person), J is precluded from liability. 

Relation to other laws.  The principles expressed in Section 20 codify the prior understanding of the basis of criminal liability and summarize the structure of this Code.  For discussion of the concepts in Subsection (a), please reference the commentary for Sections 21 through 27.  For discussion of the concepts in Subsection (c), please reference the commentary for Chapters 40 (Justification Defenses), 50 (Excuse Defenses) and 60 (Nonexculpatory Defenses).

Corresponding Provision(s):  None

Comment:

Generally.  Section 21 categorizes and defines offense elements in terms of conduct, circumstances, results, and culpability requirements.  Defining offense elements in this manner enables a systematic and clear approach to offense definition.  Specifically, the offense element definitions aid in defining culpability requirements, which can be more precisely elaborated by reference to their application to each type of offense element.  Although every offense defined in the Special Part will have some of these elements, not every offense will have all of these elements.  For example, Section 112 (Negligent Homicide) contains result elements and culpability requirements but does not contain conduct or circumstance elements.  

Offense elements may appear not only in the offense definition itself, but also in the provisions that define the offense grade or otherwise specify a specific level of liability that will attach to the offense.  For example, although the offense definition in Section 120 (Assault) does not contain circumstance or result elements, the grading section differentiates the various grades of assault based on results (e.g. causing serious injury or bodily injury) and circumstances (e.g. the victim is a minor).

Section 21(b) specifically defines each element.  Section 21(b)(1) defines a “conduct element” as that part of an offense definition that requires a person’s act or failure to act.  Examples of such elements are touching a person (Section 120 - Assault), confining or restricting another’s movement for a period of time (Section 140 - Unlawful Restraint), and taking or exerting unauthorized control over the property of another (Section 211 - Theft by Taking or Disposition).  Conduct can be distinguished from result elements in that a specific harm need not result.  For example, a person commits the offense of assault if they touch a person without their consent, regardless of what type of harm results from the touching.  

Section 21(b)(2) defines a “result element” as that part of an offense definition that requires any change of circumstances caused by the person’s conduct.  Unlike a conduct element, a result element is related to a specific result, regardless of the type of conduct that brings about that result.  For example, knowingly “damaging the property of another” (Section 220 - Criminal Property Destruction) is a result element because the element is fulfilled so long as property is damaged, regardless of the conduct that causes the damage.  

Section 21(b)(3) defines a “circumstance element” as that part of an offense definition that requires an objective element other than a conduct or result element.  Many offenses will have one or more circumstance elements that define the requisite conditions for a given act and result to generate criminal liability.  For example, in Section 221 (Endangering Property), the circumstance element is that the property threatened with a substantial risk of destruction is a structure that is either inhabited or of public utility.  Often, circumstance elements are used in grading provisions.  For example, the grade of Section 230 (Criminal Trespass) depends on whether the place entered or remained in is a dwelling, secured building or inhabited structure, or otherwise. 

Section 21(b)(4) defines “objective elements, which include the conduct, results, and circumstances of a criminal act.  The only elements of a crime which are not objective elements are any requisite culpability requirements.    

Relation to other laws.  All Maldivian crimes from previous law contain conduct, result, circumstance, or culpability requirement elements.  Accordingly, Section 21 merely attaches names to prior elements of Maldivian offenses.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 10 and 11

Comment:

Generally.  Section 22 sets forth the requirements for determining when a person’s conduct causes a result.

Section 22(a) sets forth the two basic tests for when a person’s conduct causes a result.   Section 22(a)(1) defines the “but-for” causation test:  that the result would not have occurred but for the conduct.

The following example illustrates a situation where the “but-for” causation test would be satisfied:

Example 1:  A puts fatal poison in B’s cola drink.  B dies from the toxicity of the poison.  The “but-for” causality test in Section 22(1) is satisfied—B would not have died but for A putting poison in his drink.  

The following example illustrates a situation where the “but-for” causation test would not be satisfied:

Example 2:  Company X produces a cola drink.  They produce a contaminated batch, which causes certain death in ten minutes, even with minimal consumption.  C purchases the contaminated cola, pours it into a glass, and takes a sip.  C puts the glass down, at which time D, in an attempt to kill C, pours some poison into C’s glass of cola. The poison takes several hours to take effect.  C takes another sip, and dies.  As long as it is determined that C’s imminent death was unpreventable once he drank the contaminated cola, the “but-for” causality test in Section 22(a)(1) would not be satisfied, because C died from the contaminated cola, not D’s poison.  Therefore, D is not guilty of any homicide offense since his actions did not cause C’s death; however, he is guilty of attempted murder.

Section 22(a)(2) defines the proximate causation test.  This test requires that the prohibited result must not be so far removed from the defendant’s conduct that imposing liability would be unjust.  This requirement is imposed so that people are not liable for exceptional or unusual accidents that may occur.  Proximate causation turns heavily on the foreseeability of the result.  If a result was somewhat foreseeable in a course of conduct by a reasonable person, the proximate causation test is likely to be met.  However, if a result is almost completely unforeseeable, the proximate causation test may not be met.  This test applies to result elements appearing in both the offense definition and grades.  

            The following examples illustrate situations where the proximate causation test would be satisfied:

Example 3:  E intends to cause property damage to the exterior wall of a government power facility by using an explosive device.  Unbeknownst to E, a tank of heating oil is located next to the wall on the interior of the building.  The explosive device detonates, causing the heating oil to catch fire, substantially impairing the function of the power facility.  While E did not intend to substantially impair the function of the power facility, it was a foreseeable result of using an explosive device.  As such, under Section 22(a)(2), he would be liable for proximately causing property damage that substantially impairs a government facility, an aggravating circumstance increasing the grade of his offense pursuant to Section 220 (Criminal Property Damage).  

Example 4:  F intends to assault G by hitting him with a cricket bat.  F hits G in the head with the bat, applying enough force so that G would be injured, but not killed.   G, however, has a weak skull, and the relatively light blow from F causes G to die.  F would be liable for G’s death under Section 22(a)(2) because although F did not expect G to die, the fact that death would result from being hit on the head by a cricket bat is sufficiently foreseeable.

The following example illustrates a situation where the proximate causation test would not be satisfied: 

Example 5:  H intends to assault J by throwing a coconut at him.  H throws the coconut, which misses J, but hits a nearby car.  Unbeknownst to H, the car has been rigged with a crude explosive device.  The impact of the coconut causes the device to explode, spraying shrapnel which kills J.  H would not be liable for causing the death of J under Section 22(a)(2), because the result (death by shrapnel) is not foreseeable and is so far removed from the conduct (throwing a coconut) that holding H liable would be unjust since the actor had no reason to imagine that his conduct would cause such a result.

Section 22(b) provides that in cases where more than one person contributes to a result and each person’s conduct alone would have caused the result, each person is considered to have caused the result.  This Subsection prevents equally blameworthy persons from escaping liability due to the fortuity that someone else independently caused the prohibited result.

The following example illustrates a situation where more than one person contributes to a result and both would be liable:

Example 6:  K and L intend to assault M by throwing rocks at him.  K throws a large rock at M’s head, causing fatal injuries to M’s brain.  L then throws a rock, which also hits M’s head and causes fatal injuries to M’s brain.  M dies as a result of the injuries.  Under Section 22(b), both K and L would be liable for M’s death, even though the rock K threw would have caused M’s death even if L had not been involved.

The following example illustrates a situation where more than one person contributes to a result and only one would be liable: 

Example 7:  N shoves O against a wall, causing O minor injuries that would not be foreseeably fatal.  A few hours later, P beats O on his head with a cricket bat in a manner sufficient to kill him.  However, N’s minor injuries cause O to die faster than he otherwise would have.  Under Section 22(b), P would be liable for O’s death, but N would not, because N’s conduct alone would not have caused O to die.  N could be charged with assault.

Relation to other laws.  The principles expressed in Section 22 do not appear in this specific context in prior Maldivian law.  However, the “but-for causation test” is an important and intuitive component of many criminal laws and is consistent with general principles of fairness that dictate that one only be held responsible for results that he has directly caused.  A similar construction exists in certain Muslim countries, for instance, Pakistan.[1]  

  “Proximate causation” is a concept with support in Islamic law.  Islamic law holds a person responsible for the result of their actions whenever it is “possible to trace its source back to the act which leads up to it” and does not “require that the act of the assailant be the only cause that brings about the result.”[2]  For example, Mohamed El-Awa differentiates between accidents (i.e. results that are not proximately caused by conduct because they are far removed from the actor’s conduct) and deliberate action.[3]  Ahmad b. Naqib Al-Misri also differentiates between acts intended to cause an injury but that unintentionally cause death, and those that are intended to cause death.[4]  

In addition, Section 22(b) is similar to provisions 10 and 11 of the prior Penal Code (1966), with the exception that it does not grant judges complete discretion to punish similarly situated offenders differently.  However, judges retain this discretionary authority under this Code if the offender’s conduct would not have caused the punishable result.  Where each offender’s conduct would have independently caused the punishable result, it is necessary to punish both offenders in order to prevent either guilty person from escaping punishment.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 9

Comment:

Generally.  Section 23 sets forth the minimum conduct requirements to impose criminal liability.  Section 23(a) sets the requirement that an act, unlawful possession, or punishable omission must occur in order to impose criminal liability.  This Section is necessary to prohibit punishment of “mere thoughts” unaccompanied by a physical act.  It also provides that a failure to act cannot give rise to liability unless a duty is legally created.  

The following example illustrates a situation where an act occurs: 

Example 1:  X intentionally enters B’s house and takes B’s motorcycle off his property.  Sections 210 and 230 punish theft and trespass, respectively.  X would be liable for the theft of B’s motorcycle and the trespass onto B’s property under Section 23 because he has engaged in conduct that would constitute an act.

The following example illustrates a situation where an act does not occur: 

Example 2:  C contemplates stealing D’s motorcycle, and mentions to his friend E that he would like to steal D’s motorcycle.  However, C abandons his plans and does not take any steps to actually steal the motorcycle.  As such, C would not be liable for theft or trespass because he has not actually engaged in an act.

The following example illustrates a situation where an omission occurs without incurring liability:

Example 3:  F contemplates stealing G’s motorcycle, and mentions to his friend H that he would like to steal G’s motorcycle.  F does in fact steal G’s motorcycle, and H does nothing to stop him (nor to aid him).  Since there is no duty imposed by law on H to prevent the theft of G’s property, H cannot be liable for failure to prevent the theft.  

Section 23(b) discusses what would constitute an “unlawful possession” that would give rise to criminal liability.  Section 23(b) applies to offenses which impose criminal liability, or increase the grade of an offense, for the possession of certain prohibited objects.  Section 23(b)(1) and (2) each define a different situation in which a possession would be unlawful, both cases require knowing possession.  Section 23(b)(1) notes that possession is unlawful when a person knowingly procured or received the thing possessed.  This means that a person who does not intend to receive a prohibited object, but knowingly receives it and fails to abandon it or turn it over to the proper authorities will incur criminal liability for his possession.  Section 23(b)(2) states that a person voluntarily possesses an object when he knowingly controls it.  Again, this means that someone who unintentionally but knowingly comes into control of a prohibited object and fails to abandon control of the object will incur criminal liability.  

The following example illustrates a situation where voluntary possession occurs:

Example 4:  J gives K a bag for safekeeping.  K decides to open the bag and finds a prohibited weapon inside.  K keeps the bag and fails to inform the authorities.  Under Section 23(b), K could be liable for the prohibited weapon because, while he did not intend to receive or control a prohibited weapon, he did so knowingly.

The following example illustrates a situation where voluntary possession does not occur:

Example 5:  L gives M a sealed box which, unbeknownst to M, contains a prohibited weapon.  M does not open the box, and never becomes aware that a prohibited weapon is contained therein.  Under Section 23(b), M cannot be liable for the prohibited weapon because while he has received it, he has not received it knowingly.  

Section 23(c) notes that in order to incur liability for an omission, the omission must be a failure to act when a duty to act exists.  Note that Subsection (c)(2) only holds someone liable for omission where that person has a statutory duty to act.  This creates an exception to the general rule that omissions do not create liability, with the exception predicated on the notion that people who are under a duty to protect others should be punished criminally for failing to meet those duties. Note also that such a duty is created when one who otherwise has no duty begins voluntarily assisting someone; therefore, once a volunteer takes steps to begin assisting someone, they must follow through with the assistance as long as it poses no danger to themselves.

Example 6:  X is a firefighter.  A statute establishes a duty for firefighters to intervene to protect lives or property from fires.  X fails to do so and incurs criminal liability for failing to act in light of that duty.  

Relation to other laws.  An act requirement is implied in the prior Penal Code (1966), “where such offence is completed or attempted to be completed by one act or several acts, all such acts shall be constituted as one offence.”[5]  Furthermore, the act requirement of Section 23 is supported by principles of Islamic law, which indicate that punishment of a general omission is unsupportable.  With regard to a situation in which it would be possible for someone to save another person’s life, but that person fails to do so, Ibn Duyan states:  “He is not responsible for him since he did not destroy him and was not the cause of his death, just as though he did not know him.”[6]  Thus, unless the law positively imposes a punishment for failure to act, an omission should generally not be treated as giving rise to criminal liability.  It should be noted that in cases where a dependent relationship exists (i.e. physician and patient) or where an individual voluntarily begins to aid another, a duty is created.  For example, Ibn al-Qasim is quoted as saying:  “If someone falls into a well and asks you to lower a rope for him and you try to pull him up, but when it proves too much for you, you let him go and the man dies, then you are liable for his death.”[7] 

Corresponding Provision(s):  None

Comment:

Generally.  Section 24 defines four culpability requirements—purpose, knowledge, recklessness, and negligence—and governs their application to objective elements.  The culpability requirements do not exist in the abstract; they apply to the objective elements of an offense definition.  For example, in the definition of serious assault, a person acts recklessly with respect to causing a particular result, namely causing serious bodily injury, rather than acting recklessly in general.  

Section 24(a) specifies that some level of culpability is normally required as to each objective element of an offense, and Section 24(b) requires that such culpability exist at the time of that objective element.  For example, Section 112 (Negligent Homicide) has only one objective element (causing the death of another), and it is explicitly assigned a culpability level (negligence), which must exist at the time the death is caused, even if the culpability level has changed by the time death actually occurs.

Many offenses, however, will impute the culpability requirement for some objective element, as explained in Sections 24(h) and 24(j).  For example, Section 230 (Criminal Trespass) provides a culpability requirement of knowledge that one has no authority or license to enter a place, but does not specify whether a person must negligently, recklessly, knowingly, or purposefully enter or remain in the place.  Thus, a culpability requirement of recklessness is imputed under Section 24(h).

Section 24(c)(1) defines “purpose” with respect to conduct and result elements, and Section 24(c)(2) defines “purpose” with respect to circumstance elements.  Section 24(c)(3) clarifies that conditional purpose satisfies the purpose requirement unless the condition eliminates the harm or wrong sought to be prevented by the offense.  This conditional-intent provision makes clear that a person whose intent is predicated on some factual situation (for example, the thief who intends to steal from the premises, but only if he finds something valuable therein) will satisfy a culpability requirement of purpose.  

Section 24(d)(1) defines “knowledge” with respect to a conduct element, Section 24(d)(2) defines “knowledge” with respect to a circumstance element, and Section 24(d)(3) defines “knowledge” with respect to a result element.  Knowledge requires a significantly higher certainty than the subsequent concept of recklessness; rather than a substantial risk, knowledge requires that an element be probable (circumstance) or even practically certain (result).  Knowledge differs from purpose in that the person acting knowingly may be practically certain that his actions will have a certain result, but he may not actually intend that result to occur.

Section 24(e) defines recklessness as to all objective elements.  Recklessness is distinguished from the subsequent concept of negligence in that recklessness involves a conscious disregard of a substantial risk whereas negligence involves a failure to be aware of a substantial risk.  Thus the key distinction is awareness of the risk.  If the person is aware of the risk that a particular result will occur due to his conduct, for example, then he is reckless if he ignores that risk and continues with the conduct.  If he fails to be aware of the risk, he is negligent.

Section 24(f) defines “negligence” as to all objective elements.  Section 24(f)(2) requires that the departure from the standard of care must be “gross.”  This requirement distinguishes criminal negligence from ordinary negligence and ensures that an actor’s failure to be aware of something is sufficiently blameworthy to warrant the criminal law’s condemnation.  By comparison, ordinary negligence would simply be conduct that a reasonable person would not undertake given existing circumstances.

Section 24(g) specifies that proof of a more culpable mental state will satisfy an offense’s requirement of a less serious one.  For example, proof of purpose or knowledge will suffice when the offense requires only recklessness as to an objective element.  Without this defined hierarchy of criminal mental states, applying offense definitions would either lead to absurd results or the Code would be required to define multiple culpability requirements for each objective element, thus becoming awkward and unwieldy.

Section 24(h) establishes recklessness as the “read-in” default culpability requirement for offense elements that otherwise have no specified culpability requirement.  Setting a default culpability level keeps offense definitions readable and ensures that strict liability is avoided where it is not intended.  Recklessness is set as the default level because it is the minimum level of culpability normally considered appropriate for criminal liability.

Section 24(i)(2) requires a clear indication of legislative purpose to impose strict liability to ensure that strict liability is limited to situations for which it is specifically intended and is not allowed in situations in which recklessness is to be “read in” under Section 24(h).  Strict liability punishes actions regardless of the mens rea of the actor.  Therefore, strict liability punishes not only actors who did not intend to commit an offense, but also those whose conduct was not even negligent as to possibly causing an offense.  For this reason, strict liability offenses should be limited since it goes against most theories of criminal law to punish people for reasonable actions.

The requirement of clearly indicating an intent to create a strict liability offense can be satisfied by employing the phrase “in fact” in place of a culpability requirement for a specific element of an offense.  Section 24(i) makes clear that it applies only to those objective elements for which a culpability requirement is not stated, rather than to entire offenses.  Otherwise, any offense satisfying the criteria for strict liability might be read to impose strict liability as to all elements, even those for which a culpability requirement is stated

Relation to other laws.  Prior to this Code, Maldivian law did not contain a codified, hierarchical scheme of standard defined culpability terms.  However, adding such a scheme will preserve the notions of culpable states of minds that appear throughout prior Maldivian law.  Additionally, it allows for consistent application of culpability requirements through the exclusive use of the four defined culpability terms of purpose, knowledge, recklessness, and negligence.  These four culpability requirements are standard for a modern code.  This Section provides a consistent and precise structure for defining the culpability requirements for each offense.  

Islamic law, like this Code, recognizes gradations with regard to an actor’s intent, and, according to some scholars, can be broadly divided into general intent, specific intent, and mistake.[8]  Islamic law classifies “negligence” under its broad category of mistake (khata).[9]  In addition, homicide and assault offenses under Islamic law are categorized according to levels of culpability, namely intent (‘amd), quasi-intent (shibh al-‘amd), and mistake (khata).[10]  This Code includes an additional level of culpability to provide greater distinction between the types of culpability that already exist within Islamic law.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 23 and 24  

Comment:

Generally.  Section 25 provides that ignorance or mistake as to a matter of fact or law is admissible to negate culpability for an offense.  However, this does not mean that ignorance or mistake is necessarily or generally a defense to an offense; rather, these circumstances will be quite limited.  Specifically, the mistake must negate the culpability level for an offense.

The following example illustrates a situation where a mistake negates a culpability requirement:

Example 1:  A prepares dinner for his friend B using some vegetables he picked from his garden.  Unbeknownst to A, the vegetables have been sprayed with an insecticide that is particularly fatal when consumed.  A does not wash the vegetables and serves them to B, who consumes them and dies as a result.  A’s ignorance as to the fact of the lethality of the vegetables would be a defense (under Section 25) to murder because it negates the culpability requirement of “knowingly” causing the death of another.

The following example illustrates a situation where ignorance does not negate a culpability requirement:

Example 2:  C alters a piece of art so that it purports to be an original when in fact it is a copy.  C does not know that this is an offense punishable by law.  Section 310 makes it an offense to alter an object so that it purports to have an authorship which it does not.  Knowledge of the illegality of C’s conduct is not part of the offense definition in Section 310, so C’s ignorance does not negate the level of culpability for the offense.  Under Section 25, C would not have a defense to liability.

The following example illustrates a situation where a mistake does not negate a culpability requirement:

Example 3:  D serves seafood to his friend E.  The seafood is taken from an area commonly known to have problems with marine toxins.  Although D is aware that fish from that area are commonly affected with these marine toxins, he does not actually know if the specific fish he is using is so affected.  The fish is in fact affected, and E dies as a result of consuming it.  While D did not serve the affected fish knowingly, he was aware of a substantial risk and ignored it, making him reckless.  D would not have a defense under Section 25 to reckless homicide because his ignorance would not negate the recklessness of his conduct.

Relation to other laws.  This Section replaces Provisions 23 and 24 of the Penal Code (1966).  In addition, Islamic law recognizes that a mistake as to law or fact may or may not be exculpatory.  Ahmad b. Naqib al-Misri, for example, holds that intentional crimes (‘amd) should be differentiated from those that are mistaken (khata) and also from those that are mistaken, but intentional (‘amd khata).[11]  The factor in both the Code and prior Maldivian law that determines culpability is the state of mind of the accused.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 24

Comment: 

Generally.  Section 26 recognizes that a mental disease or defect may negate an offense’s culpability requirement.  This Section provides a definition of mental disease or defect to clarify the limits of its application.  Section 26 makes clear that evidence of mental disease or defect may be relevant in contexts other than those covered by the Code’s excuse defense for insanity and nonexculpatory defense for persons unfit to stand trial.  [See Sections 52 (Insanity) and 62

(Unfitness to Plead, Stand Trial, or Be Sentenced) and corresponding commentary].  For example, the insanity defense provides a freestanding excuse in cases where a person satisfies all culpability requirements of the offense but merits exoneration because he could not control his conduct nor understand the criminal nature of his act.  Section 26, on the other hand, would apply in cases where the person’s mental incapacity prevented him from satisfying the offense’s elements in the first place, such as where an offense requires knowledge and the person’s mental incapacity prevented him from “knowing” something a person of normal mental capabilities would know.  In such a case, the admissibility of evidence related to the defendant’s mental disease or defect should not rest on his ability to present sufficient evidence to properly raise an insanity excuse under Section 52.  This distinction is necessary since someone’s mental disability may allow him to understand the gravity of his actions, but it may prevent him from meeting a culpability requirement such as acting purposefully or even knowingly.

The following examples illustrate situations where mental disease or defects negates a culpability requirement:

Example 1:  A has a severe mental disease.  Because of this mental disorder, A enters the house of B, thinking that it is his own house.  A’s mental disease negates the knowledge culpability requirement for trespass under Section 232.  Thus, A has the right under Section 26 to put forward evidence to show that his mental disease negated the culpability requirement of knowledge.

Example 2:  C has a mental defect that reduces his ability to weigh the risk of his actions.  He invites D onto a boat that bears a substantial risk of sinking.  The boat sinks, and D dies as a result.  C’s mental defect may negate the awareness of risk necessary to show the recklessness culpability requirement for manslaughter under Section 112.  As such, C has the right under Section 26 to bring in evidence to show that his mental defect negated the culpability requirement of recklessness.

The following example illustrates a situation where mental disease or defect does not negate a culpability requirement:

Example 3:  E is severely depressed.  E then decides to kill F and does so purposely.  E’s mental disease does not negate the culpability requirement of purpose required for murder under Section 110.  As such, E may not bring in evidence of his mental defect under Section 26 because it is irrelevant as to whether or not he purposely killed F.  

Relation to other laws.  This Section draws on Provision 24 of the Penal Code (1966), which provides in part, a defense for a person who, “by reason of being in a certain state of mind, is incapable of knowing the nature of the act or that it may be contrary to law”.[12]   Section 26 clarifies this defense so that it applies specifically to the relationship between mental defect and culpability requirements.   

Exempting insane persons from criminal liability is strongly supported by Islamic law.  According to a well-known hadith, insane persons lack legal capacity (ahliyat al-ada’): “the pen has been lifted from three: for the sleeping person until he awakens, for the boy until he becomes a young man and for the mentally insane until he regains his sanity.”[13]  In addition, in cases of homicide and assault, according to Ahmad b. Naqib al-Misri, retaliation (qisas) may not be applied to insane persons “under any circumstances.”[14]  Similarly, Ibn-Duyan argues the law “does not permit punishment of one who is not in command of his mental faculties.”[15] 

Corresponding Provision(s):  None

Comment:

Generally.  Section 27 establishes rules governing when the consent of one who would otherwise be the victim of an offense will preclude criminal liability.  Section 27(a) defines the general rule, Section 27(b) provides special rules for offenses involving bodily injury, and Section 27(c) defines the circumstances under which a person’s agreement will not constitute valid legal consent.

 Section 27(a) provides that a victim’s consent will preclude liability, as a general matter, if it negates either an offense element or the harm or wrong at which the offense is aimed.   For example, several offense definitions in the Code explicitly include the absence of a person’s consent as an offense element.  The Code treats an offense definition’s requirement of the absence of consent as a circumstance element for which the prosecution bears the burden of persuasion.  Because the absence of consent is an element, the Code’s culpability rules apply to that issue.  

 Section 27(a) also provides a defense for situations where consent does not negate an explicit offense element, but nevertheless “precludes the infliction of the harm or wrong sought to be prohibited” by an offense.  For example, Section 220 (Criminal Property Damage) criminalizes damaging the property of “another.”  A victim’s consent does not negate the offense’s requirement that the property involved belong to “another,” but it does negate the harm at which the offense is aimed.

 Section 27(b) creates special rules for consent to bodily injury in recognition that, in limited circumstances, consent to such injury should preclude criminal liability, even though it does not negate either an offense element or the harm the offense seeks to punish.  Section 27(b)’s rules operate independently of Section 27(a)’s general rules regarding consent.  A consent defense exists if either Section 27(a) or 27(b) is satisfied; it is not necessary to satisfy both 27(a) and 27(b).

 Section 27(b)(1) provides that consent to bodily injury is a defense where the bodily injury is not “serious.”  Therefore, consent does not preclude liability for offenses involving serious bodily injury.  This is because the state has an interest in preventing serious bodily injury despite the victim’s consent.  Section 27(b)(2) recognizes consent as a defense where the bodily harm caused or threatened occurs in a lawful sport or athletic contest.  This subsection recognizes that athletic contests often result in injuries due to the nature of the sport in which the victim voluntarily participates rather than bad intentions of the athlete causing the injury. 

 Section 27(c) recognizes that a person’s agreement will not always constitute valid legal consent (for example, where the person is incompetent or the “consent” is coerced) and ensures that the Code is both clear in explaining when consent precludes liability and consistent in its treatment of consent from one offense to another.  Section 27(c) recognizes four sets of circumstances under which a victim’s assent will not constitute effective consent.  

Section 27(c)(1) provides that a person’s agreement will not provide a defense where he is legally incapable of authorizing the conduct constituting the offense.  For example, permission to operate a motor vehicle by someone who merely knows the owner, but is not the owner himself, will not preclude liability under Section 217 (Unauthorized Use of Property) because the person giving consent for use of the motor vehicle is not legally capable of providing consent to using the vehicle.

 An actor’s mistake as to consent will ordinarily be immaterial where consent provides a defense only because it precludes the infliction of the harm sought to be prohibited, under Section 27(a)(2).  Where the absence of consent is an offense element as to which culpability is required, however, a mistake as to consent may negate that requirement.

 For example, lack of consent is a required element of Section 217 (Unauthorized Use of Property) offense, and recklessness is the read-in culpability requirement as to lack of consent.  Although assent from a non-owner cannot constitute consent under Section 27(c)(1), if someone mistakenly believes that the non-owner is the owner it could negate the recklessness requirement.  A mistake as to consent may similarly negate offense elements other than the absence of “consent” per se, such as whether the actor had authority or was acting against another’s will.

 On the other hand, the victim consenting to damage inflicted on his own property is a defense since the consent rules out the harm intended by Section 220 (Criminal Property Damage), as explained earlier.  However, a mistake as to whether the victim consented to that damage is immaterial.

 Section 27(c)(2) makes clear that consent will not preclude liability where the victim lacks the mental capacity to consent or is otherwise incompetent.

 Section 27(c)(3) provides that assent does not constitute effective consent where it is given by one whose improvident consent the law seeks to protect against.  For example, a minor’s consent to sexual intercourse will not preclude liability for sexual assault against a minor precisely because that offense aims to prevent such improvident consent.  Finally, Section 27(c)(4) provides that consent is not a defense where it is induced by force, duress, or deception.

Relation to other laws.  The prior Penal Code (1966) does not contain a provision addressing consent as a defense to offenses in general.  Section 27 in this Code allows for consistent application of consent as a defense.  Additionally, Islamic law recognizes consent as a defense to certain offenses, such as theft.  Ibn Duyan explains that before punishment can be imposed for theft, it must be made clear that the property was taken without the victim’s consent.[16]  However, as ‘Abd al-Qadir ‘Oudah notes, obtaining consent to kill or injure someone does not remove liability under Islamic law.[17]  This Section of the Code is generally consistent with this approach and, thus, consent will not constitute a defense to the more serious grades of homicide and assault.  

Corresponding Provision(s):  None

Comment:

Generally.  This Section sets out “defenses” for persons whose conduct was within a customary license, was too insignificant to merit criminal punishment, or did not cause the harm contemplated by the offense’s existence.  These provisions enable the court to dismiss prosecutions on these bases, creating an additional safeguard against unnecessary prosecution beyond reliance on prosecutorial discretion.  Section 28’s defenses are consistent with the rule of construction that a statute should not be interpreted to produce an absurd result.

 Section 28(a) provides that conduct may be exempt from liability if it is within a “customary license or tolerance.”  For example, where a landowner has notice against trespassing on his property, but allows his neighbors to use the property as a shortcut, Section 28(a) would provide a defense to the neighbors if the landowner unexpectedly decided to accuse them of trespassing.  Section 28(a)’s defense is not available, however, where a license has been “expressly negated by the person whose interest was infringed” or is inconsistent with the relevant offense.  For instance, if the landowner informs the neighbors that he is revoking his permission for them to use his property, but the neighbors continue using it anyway, then Section 28(a)’s defense would not be available to them.

 Section 28(b) recognizes a defense for conduct that, although technically constituting an offense, is too trivial to warrant a criminal conviction.  Section 28(c) provides a defense where one did not actually cause the harm or wrong at which the offense is aimed.  Both of these Sections prevent criminal prosecutions where it would be inappropriate to inflict the condemnation of criminal punishment.

 Section 28(d) places an important limitation on the defenses to ensure that they are not abused.  The Section provides that the court may not dismiss a charge on the basis of a defense set forth in Section 28 without filing a written statement of its reasons for doing so.

Relation to other laws.  Prior Maldivian law did not address the content of Section 28.  In practice, discretion by prosecutors and the court prevented imposition of criminal punishment for conduct which does not warrant criminal condemnation.  However, codifying the situations in which conduct is not worthy of criminal condemnation and providing that the court shall dismiss offenses based on such conduct will ensure, in a uniform and consistent manner, that criminal punishment is preserved for the situations in which it is appropriate.

Additionally, the grounds for dismissal listed in this Section are consistent with defenses under Islamic law.  For example, Islamic law provides for a de minimis defense to theft. 

Mohamed El-Awa states that the “majority of the jurists” agree that “value of the stolen property  (nisab al-sariqa) should exceed, or at least be worth, a minimum fixed by law; the punishment for theft is not to be inflicted if its value is less than this minimum.”[18]  He goes on to note that determining what “minimum value” requires punishment is the “duty of the lawmakers in each country” and should be “reviewed in light of contemporary social circumstances.”[19]  In addition, Muslim jurists have long recognized that where results in certain individual cases constitute technical infringements of the law, those results are contrary to the overriding purposes of the law  (maqasid al-shari’ah) and the case should therefore be overturned.  

Comment: 

Generally.  This Section collects defined terms used in Chapter 20 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 20’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter outlines the various ways in which culpability may be imputed to the defendant.  It defines the required culpability level as well as the imputation of culpability for actions not taken directly by the defendant, but for which the law holds the defendant responsible.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 11

Comment:

Generally.  This Section sets out the circumstances according to which one person may be held accountable for the conduct of another person.

Sections 30(a)(1), (2), and (3) define three standards for liability.  Section 30(a)(1) applies where the defendant causes another person, who serves only as an innocent instrument, to commit the conduct constituting the offense.  Section 30(a)(2) applies where the Code explicitly makes the defendant accountable for the conduct of another.  Section 30(a)(3) makes the defendant accountable if he is the accomplice of another person in the commission of an offense.    The imputation of one person’s conduct to another person does not alter the culpability level required by the offense. Rather, the person held accountable for another’s conduct must satisfy the same culpability level for the underlying offense.  This is made clear in Section 30(a)(1) and Section 30(b).  This is because the Code seeks to punish the offender’s criminal intent, as well as his criminal actions.

Section 30(b) defines the elements required for accomplice liability.  Significantly, accomplice liability only attaches to an accomplice in the “commission of the offense,” thus the underlying offense must have been completed.  Complicity does not apply to inchoate offenses.    Section 30(c) specifically precludes accomplice liability in certain cases.  Section 30(c)(1) prevents liability when a person aids a crime in which he himself is a victim.  Section 30(c)(2) prevents liability for conduct that technically aids in the offense but is inevitably incidental to its commission.  In other words, the accomplice knowingly aided the offense in such a way that was sure to be insignificant or of minor help in its commission.  Section 30(c)(3) precludes accomplice liability in cases where the accomplice renounces his part in the commission of the offense.  Not only must he terminate his assistance, but he must seek to either purge his assistance of all the value it has (or will have) to the commission of the offense, or actively work to foil the commission of the offense.  This is meant to provide an incentive for those involved in crimes to have a change of heart and seek to block the commission of the offense.  This Section is similar to Section 85 (Defense for Renunciation Preventing Commission of the Offense).  

A person who is legally accountable for the conduct of another because he satisfies the requirements of Section 30(b) is liable for the underlying offense, but the grade of the offense for which he is liable may be adjusted under Section 30(d) depending on the extent of his involvement.  This provides an incentive for accomplices to play less active roles in crimes.  Full liability is imposed for an accomplice who acts as an organizer or leader, as defined in Section 30(d)(4)(A).  Liability for a “participant,” as defined in Section 30(d)(4)(C) for the purposes of this Section, is one grade level lower than that of the underlying offense.  Liability for an accomplice whose role is that of a minor participant, as defined in Section 30(d)(4)(B), is two grade levels lower than that of the underlying offense.  Under the definition of a minor participant in Section 30(d)(4)(B), a minor participant provides minimal assistance or assistance that is incidental to or not necessary for the commission of the offense.  Whether assistance is minimal, incidental to, or not necessary for the commission of the offense is a question of fact.  An example of assistance that would likely be necessary for the commission of an offense, rendering the accomplice more than a minor participant, is supplying a dangerous weapon to be used in an Aggravated Assault under Section 120(c)(2), especially if weapons are otherwise unavailable.    

The Subsections on accomplice liability must be read in conjunction with the provisions on inchoate liability in Chapter 80.  Under Section 30(e), a person who would have been accountable for the conduct of another if the other had committed the offense is guilty of an attempt to commit the offense.  Liability for an inchoate offense is appropriate for an accomplice where he satisfies the requirements of Section 30(a), but the person for whose conduct he would have been accountable does not commit the offense.  Section 86 imposes reduced liability in recognition of the fact that the harm of the substantive offense does not occur in such situations.

Section 30(f) applies “whether or not the offense is attempted or committed by the other person,” thus clarifying that one is subject to liability for an unsuccessful attempt to aid another in the commission of an offense.  Under Section 30(f), a person who attempts to aid another is liable at one grade level lower than he would have been had his attempt to aid succeeded.  Section 30(f) recognizes that inchoate efforts toward an offense should not be sanctioned as severely as completed efforts.  Section 30(f) therefore reduces the liability for attempted complicity relative to actual complicity.  In cases under this Subsection, an accomplice may also be liable under Section 81 (Criminal Solicitation) and Section 82 (Criminal Conspiracy).

 Section 30(g) provides that a person who may have been legally incapable of committing an offense himself may still be convicted of the offense based on his accountability for the conduct of another who commits the offense.  

Example 1:  A non-Maldivian is legally incapable of committing the crime in Section 616 (Failing to Fast During Ramadan; Consuming Pork or Alcohol).  However, he may still be liable for complicity if he knowingly aids and facilitates another, a Maldivian, in the commission of the crime.

Section 30(b) requires the accomplice have the culpability necessary in the underlying offense.  Thus, the accomplice would still be able to assert any defense which negates his culpability as to the offense, as well as any general defense for which he qualifies under Chapters 40, 50, or 60.  This Section limits a person’s legal incapacity—for example, diplomatic immunity—to his own conduct only; he cannot seek to involve others in criminal activity without incurring liability.    Section 30(h) makes clear that the accomplice may be liable even if the principal is not held liable for the underlying offense.  This ensures that the prosecution of accomplices is not hampered by the results of another trial.  This Section still requires proof of the commission of the offense and the defendant’s complicity.  It is simply designed to insulate the prosecution of an accomplice from any procedural, evidentiary, or other mistakes that invalidates only the prosecution of the principal.

Relation to other laws.  Provision 11 of the prior Penal Code (1966) provides that, when an offense is committed by several people committing several acts, each person who commits the offense or part of the offense with the intention to commit the offense is liable for that offense.  Sections 30(a) and 30(b) of the Code are consistent with this concept in that they hold a person liable for aiding another in committing an offense with the purpose of promoting or facilitating the commission of an offense.  However, although a person must have the purpose of promoting or facilitating commission of the offense, the required culpability as to the objective elements of the offense is not elevated to the level of purpose.  As to the underlying offense, the accomplice must act only with the culpability required for the commission of the offense.  It is not clear under the prior Penal Code (1966) whether or not the person committing part of the offense must act with intent with respect to all objective elements of the offense.

Provision 11 of Penal Code (1966) allows a judge to vary punishment based on the extent of an individual’s involvement when the offense is committed by several people committing several acts.  Similarly, Section 30(d) of this Code allows for mitigation based on the extent of an accomplice’s involvement in the commission of an offense.  The Section provides guidance as to what mitigation is appropriate for what type of involvement in the offense.  

 In the prior Penal Code (1966) Provisions 12, 13, and 14 address accomplice liability.  Provision 12 of the prior Code (1966) creates an offense of abetment when a person takes part in committing an offense by advising, instigating, conspiring, or aiding.  Provision 13 of the prior Code (1966) defines aiding in the commission of an offense.  Under provision 14, a person is liable under provisions 12 and 13 of the prior Penal Code (1966), rather than liable for the underlying offense, if he aids or abets the offense but does not commit an act constituting the offense or an act that facilitates the principal offender’s escape.  Under provision 14 of the prior Code (1966), a person who commits an act constituting the offense or facilitates the principal offender’s escape is liable for the underlying offense instead of violations of provisions 12 and 13. However, Section 30 of this Code holds an accomplice liable for the underlying offense, rather than a separate offense, based on the conduct of the principal offender, if the accomplice satisfies the requirements of Section 30(b).  An accomplice with lesser involvement, although still liable for the underlying offense rather than a separate offense, may receive the mitigation provided in Subsection 30(d) and have his liability reduced by one or two grades.  Therefore, this Code always holds the accomplice liable for the underlying violation, but offers some mitigation in grading.  This allows the Code to operate similar to prior Maldivian law, but with a simpler application.

 In addition, there is general support for this Section in Islamic law.  Ibn Rushd notes that jurists classify an accomplice in the same terms as the one actually carrying out the act; they consider terms like “murderer” to be “metaphorically” applicable to the accomplice.”[1]  Similarly, he notes that Muslim jurists have generally held an entire conspiring group equally responsible for the actions of one member.[2]    

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 24

Comment:

Generally. This Section governs the imputation of culpability to a person who engages in offense conduct after voluntarily becoming intoxicated.  For conduct performed under the influence of involuntary intoxication, see Section 54 and corresponding commentary.

Section 31(a) allows defendants to introduce evidence indicating that they lacked an offense definition’s required culpability because of their intoxication.  However, Section 31(b) allows for the imputation of culpability to an actor who engages in offense conduct while he is voluntarily intoxicated.  Therefore, even if the evidence of intoxication does negate the culpability element required by the offense definition, the defendant may still be liable for the offense because the required culpability element that was negated by his intoxication will be imputed to him if he voluntarily intoxicated himself.  So if a person is voluntarily intoxicated, Section 31 will truly negate the culpability requirement only if the culpability requirement is acting knowingly or purposely.

Section 31 treats voluntary intoxication as a basis for imputation, and not as a special defense; its special relevance is that it will inculpate, rather than exculpate, defendants in certain cases since the actor may have only acted negligently, but because he voluntarily intoxicated himself, he is treated as if he acted recklessly.  Under Section 31(b), intoxication may be used to hold a defendant accountable as if he were culpably aware of a risk, whether or not it can be proved that he had a mental state of recklessness.  Where the imputation rule does not apply, and where the person does not otherwise satisfy the culpability requirements of the offense, there would be no liability—as would be true in any case where the defendant lacked the culpability required by the offense. 

Example 1:  X gets drunk voluntarily and decides to drive home.  While negligently driving home at a speed just over the speed limit, he strikes Y, a pedestrian, who is seriously injured.  Since X was voluntarily drunk, the culpability requirement of recklessness is imputed to him.  Therefore, he is liable for Serious Assault under Section 120(b)(1), even though his actual actions were only negligent.

Example 2:  The same scenario as in Example 1 except that in this case, X got drunk after drinking orange juice.  He did not realize someone had mixed alcohol into the juice.  Since he was not voluntarily drunk, there is no imputation of recklessness.  And since his actions were merely negligent, he is not guilty of an assault offense under Section 120.

Under Section 31(b), when voluntary intoxication prevents an actor from being aware of a risk, he is nonetheless treated as being aware of the risk because of his culpability in becoming intoxicated.  Although his awareness of risk is imputed, the prosecution must still show that his disregard of that risk is worthy of criminal condemnation because it grossly deviates from the standard of acceptable conduct.  Allowing an actor’s culpability in becoming intoxicated to serve as the basis for imputing his culpability as to the offense conduct, although arguably harsh, is more desirable than allowing a voluntarily intoxicated actor to avoid liability.  The harshness of imputing culpability for offense conduct based on culpability in becoming intoxicated is mitigated by the fact that only awareness of risk is imputed as described above and by the requirement in Section 31(c)(1) that an actor must be reckless as to becoming intoxicated (instead of merely negligent).

Under Section 31(c)(1), a person must knowingly introduce the intoxicating substances into his body and be reckless as to the intoxication resulting from the introduction of those substances in order to be considered voluntarily intoxicated.  Additionally, under Section 31(c)(2) an actor who has a reaction that is grossly in excess of that which he could have reasonably expected is not considered to be voluntarily intoxicated despite the fact that the intoxication was self-induced.

If a person acted only negligently in becoming intoxicated, he is not considered to be voluntarily intoxicated as defined in Section 31(c), and so he will not be treated as being aware of a risk under Section 31(b).  At that point, the inquiry is whether or not his intoxication prevented him from forming the requisite culpability for the offense.  It should be noted that a person could be liable for an offense, regardless of his intoxication, if he possessed the culpability required by the offense when he became intoxicated.  Consider, for example, a person who intentionally becomes intoxicated knowing that he will assault his spouse when drunk.  Although the person may ultimately become so intoxicated that he may not be contemporaneously aware of, or intend, his actions in beating his spouse, the person’s earlier culpability at the time he became intoxicated could support liability for the assault.  In such a case, the prosecution could argue that the person had the requisite culpability for the assault at the time he became intoxicated, and that his conduct in becoming intoxicated was part of the conduct that caused the prohibited result of bodily harm.

Relation to other laws.  Under the prior Penal Code (1966), a person is liable for his offense, despite being in “a certain state of mind” that prevents him from knowing the nature of his act or that it is contrary to law, if he has created “that state of mind on his own volition or with his consent or by doing an act with knowledge that it will or may be likely to cause that state of mind.”[3]  It follows that prior Maldivian law would impose liability on a person who voluntarily intoxicates himself and then commits an offense, even though his intoxication prevented him from being culpable for the offense.  

The framework for liability in the General Part of this Code provides two ways in which a person’s intoxication could prevent him from being liable for his offense.  First, a person who commits an offense must satisfy all the elements of the offense definition, including the culpability requirements.  Intoxication could preclude liability here if it prevents a person from acting with the culpability required by the offense definition.  Additionally, intoxication can prevent liability through an excuse defense even if all objective elements and culpability requirements are satisfied, if the person’s intoxication prevents him from perceiving the nature of his conduct, appreciating the wrongfulness of his conduct, or controlling his conduct.  The Code adopts this approach in the case of involuntary intoxication.  See Section 54 (Involuntary Intoxication) and accompanying commentary.  

Provision 24 of the prior Code (1966) is more similar to the excuse defense defined in Section 54 of this Code.  Since the framework of the prior Code would also allow intoxication to exculpate an actor because he had not satisfied the culpability level required by the offense definition, it is necessary to include a provision such as Section 31 (Voluntary Intoxication) that imputes culpability to a person who commits an offense after voluntarily intoxicating himself in order to hold the person liable for causing the state of mind that prevented him from acting with the culpability required for the offense. 

Additionally, there is support in Islamic law for this Section, because most Muslim jurists are of the opinion that if intoxication is “by choice” then the accused is liable for all his acts.[4]    

Corresponding Provision(s):  None

Comment:   

Generally.  Section 32 addresses the “transferred intent” situation where a person intends, foresees, or risks a result that would be an offense, but actually causes or risks another result that is also an offense.  In such a case, liability may be imposed for the unintended offense that actually occurs through imputation of culpability.  Where a person causes both the intended result and another result that is also an offense, he may be held liable for both offenses subject to Section 94, which governs prosecution for multiple offenses.  Where the intended result does not occur, the person may be held liable for attempting to commit the intended offense as well as for committing the unintended offense, also subject to Section 94.  

The following example illustrates when a person may be liable for both an attempt to commit the intended offense as well as for committing the unintended offense.

Example 1:  X plans to injure Y by hitting him with a steel pipe.  He finds Y in an expensive glassware shop and tries to hit him with the pipe.  He misses and instead destroys all of the glassware in the shop.  X is liable for the attempted assault of Y.  He is further liable for criminal property damage since swinging a steel pipe inside a glassware shop is reckless.

Section 32(1) uses the term “consequence” instead of “result” because in some cases, unintended circumstances may create liability for another offense.

Relation to other laws.  Prior Maldivian law is silent on this matter.  Because this Code requires that a person must satisfy all elements, including culpability requirements, of an offense definition or have those elements imputed to him before he is liable for his offense, it is necessary to include a Section, such as Section 32, that explicitly provides for the imputation of culpability when the consequences that occur differ from the consequences risked or intended.  Additionally, the concept of “mistake” (khata) in Islamic criminal law provides general support for this Section.  Ahmad b. Naqib al-Misri states that the criterion for an honest mistake is “that the act is intended but not its object.”[5]

Corresponding Provision(s):  None

Comment:

Generally.  This Section addresses situations where a person has a mistaken belief that negates the culpability required for the offense, but is not entitled to a defense under Section 25 (Ignorance or Mistake Negating Required Culpability) because even under his mistaken view, he was committing another offense.  In such cases, culpability as to the committed offense will be imputed based on the person’s culpability as to the intended offense.

 Section 33 clearly provides that mistake or ignorance is not a defense if the defendant who did commit the lesser offense mistakenly thought he was committing a similar or more serious offense.  In other words, the defendant’s culpability as to the greater offense will be imputed to make him liable for the lesser offense.  Where the defendant would be guilty of another offense of a lower grade had the situation been as he supposed, attempt liability for the less serious offense may be appropriate under Section 80 (Criminal Attempt).  See Section 80

and corresponding commentary.  

The following example illustrates how a person’s culpability may be imputed based on his mistaken belief of committing an offense of a higher grade:

Example 2:  X has sexual intercourse with Y without Y’s consent, believing Y is a minor and more than 4 years younger than him, a Class 2 felony.  However, although Y is a minor, she is less than 4 years younger than X, a Class 3 felony.  X’s knowledge as to Y’s age, although mistaken, is imputed in his prosecution for the Class 3 felony.  X may not bring forth evidence of his mistake since he is barred from the defense provided in Section 25.

 The following example illustrates what happens when a person acts based on his mistaken belief of committing an offense of a lower grade:

Example 3:  X places Y in a shed as a prank and ties the door closed with string, believing that Y will be able to break the string and escape within a few minutes.  However, Y is unable to break the string and remains trapped in the shed for two days.  The grade of the Unlawful Restraint that X believed he was committing under Section 140(c)(3) is merely a Class 1 misdemeanor.  Since that is a lesser offense than the harm actually caused (see Section 140(c)(2)) his culpability is not imputed to the greater harm (restraint for two days instead of a few minutes) and he is not liable for a Class 4 felony.  However, X is still liable for committing the lesser offense.

Relation to other laws.  Prior Maldivian law does not specifically address the situation dealt with in Section 33.  However, since this Code requires that a person must satisfy all elements, including culpability requirements, of an offense definition or have those elements imputed to him before he is liable for an offense, it is necessary to include Section 33 to impute culpability in the situations described above.  Otherwise, someone might not be punished for their criminal intent even if they cause harm, simply because the results of their actions did not rise to the level they had expected.

 Additionally, there is general support for the concept of mistaken belief in Islamic law.  For example, Ahmed Fathi Bahnassi cites the example of a man who sleeps with a woman he thinks to be his wife, but is not.  Because he made a mistake as to the woman’s identity, he would not be punished for adultery.[6]

Comment:

Generally.  This Section collects defined terms used in Chapter 30 and provides crossreferences to the Section in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 30’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

 This Chapter discusses defenses to prosecution that apply when the action producing the offense is justified.  The various Sections of this Chapter outline the different types of justifications, including self-defense, actions committed by individuals in positions authorizing such conduct and undertaking actions which prevent a greater harm from taking place.

Corresponding Provision(s):  None

Comment:

Generally.  This Section sets out several general rules applicable to justification defenses. 

Section 40(a) defines the terms “justification defense” and “justification.”

Justifications differ from excuses – which are covered in Chapter 50 – in that they relate to specific conduct, not specific persons, although sometimes only particular persons are authorized to perform the justified conduct.  In other words, conduct is justified whereas a person is excused.  For example, self-defense is justified and involuntary intoxication would be excused.  Justification defenses prevent liability for conduct that is socially acceptable, and often desirable, because the conduct furthers a greater societal interest or avoids a harm that outweighs the harm sought to be prohibited by the Code.  Section 40(b) notes that justified conduct, beyond merely being non-criminal, merits heightened legal status:  a person may not lawfully seek to impede another’s justified conduct.  

Section 40(c) and 40(d) address situations where an actor causes the circumstances that give rise to the justification for his conduct.  As opposed to the general statement of Section 40(c), Section 40(d)(1) applies to situations in which a person caused the circumstances giving rise to the justification for his conduct with the culpability required for the offense for which he is seeking the justification defense.  An example of such a situation is someone who kills another person after recklessly provoking that person to attack him with deadly force.  Because he caused the circumstances that would give rise to a justification (Defense of Person under Section 45) with the culpability required for reckless killing under Section 111(a), he would be liable for that offense, barring the application of a general defense under Section 40(d)(2).

Section 40(f) creates a rule mandating the supremacy of more specific justifications over more general ones.  This is because the more specific justifications set out full legislative determinations regarding liability for specific forms of conduct.  To allow a more general provision to supersede or complement the more specific provision would enable circumvention of the particular requirements that have been determined to be necessary to justify such conduct.  Therefore, general justifications (namely Sections 41 (Lesser Evils) and 42 (Execution of Public Duty)) apply only where the legislature has not provided a more specific justification with particular determinations regarding the conduct in question.  

Example 1:  A strikes B for verbally accosting C in a loud and offensive manner.  If A seeks to use a justification defense, he cannot attempt to claim a justification defense of Lesser Evils under Section 41, since the facts involved suggest that the proper defense to assert would be Defense of Person under Section 45.  The Section 41 defense would not be allowed since it would make the Section 45 defense moot if an actor were merely allowed to claim the more general Lesser Evil defense rather than meet the required elements of the Defense of Person section.

At the same time, Section 40(e) makes clear that conduct may relate to several justification rules at once.  For example, an aggressor’s conduct may threaten both a person’s life and his property.  Where this is the case, the actor may act according to the allowances of any relevant justification—in this example, defense of person and defense of property.  If the defense of person provision authorizes deadly force, the person may employ such force even though the defense of property provision standing alone would not allow it.

Relation to other laws.  There is no general concept of justifications in prior Maldivian law.  However, one specific example of a justification in prior law is Penal Code (1966) Provision 25, which is discussed below in the commentary to Section 45.  Including general provisions on justification defenses will ensure consistent and principled application of specific justification defenses.

Islamic law does conceive of justifications as described in some Sections of this Chapter.  These will be addressed in reference to specific Sections in this Chapter, as applicable.  

Corresponding Provision(s):  None

Comment:

Generally.  This Section ensures that conduct will not give rise to criminal liability where such conduct is objectively necessary to avoid a threatened harm greater than that caused by the conduct itself.  For example, an ambulance driver is justified in exceeding the speed limit or passing through a traffic light in order to rush a critically wounded person to the hospital in time to save his life.  Similarly, property may justifiably be destroyed to prevent the spread of a fire.  Note that, according to the definition of “necessary” in Section 41(b), the person’s conduct must be necessary both in the timing and in the amount of harm caused to be considered justified under this defense.

The following example illustrates when conduct is necessary under Section 41(b):

Example 1:  X sees Y in the control room of a major power plant.  Y is about to push a button that would shut down the power plant.  Y is clearly not authorized to be in the control room or shut down the plant.  X shouts for Y to stop, but Y ignores him.  X rushes into the room and shoves Y to the ground, preventing him from pushing the button.  X’s conduct was necessary in that it was both necessary at that point in time and the minimum conduct necessary to prevent the harm.

The following examples illustrate when conduct is not necessary under Section 41(b):

Example 2:  Under the same circumstances as in Example 1, X instead pulls out a knife and stabs Y repeatedly, inflicting fatal wounds.  X’s conduct was not necessary because a lesser amount of force would have been sufficient to prevent the harm.

Example 3:  Rather than seeing Y about to push the button, X overhears Y tell a friend the previous day that he intends to shut down the power plant.  X immediately attacks Y and hospitalizes him, thus preventing the harm.  However, X’s conduct was not necessary in that it was not immediately necessary at that time since Y was not going to attempt to shut down the plant until the next day.

Under Section 40(f), the use of this general justification defense is precluded when another justification defense in this Chapter more specifically addresses the situation.  In such a case, a person cannot rely on the lesser evils defense to avoid the more specific requirements imposed on his conduct by the justification defense that specifically addresses the situation.  See Example 1 under Section 40.

Relation to other laws.  No such concept appears to exist in prior Maldivian law, at least to the extent that such law is codified.  However, Islamic law recognizes the doctrine of the lesser of two evils, which is generally considered part of a broader concept of necessity which permits violation of the law to prevent an inescapable evil from occurring.[7]  Jurists often cite the following Qur’anic verse in support:  “He (God) has explained to you in detail what is forbidden to you - except under compulsion of necessity.”[8]  Ibn Duyan writes of the concept of lesser evils, indicating that such a justification may be a defense to the hudud.  For instance, Ibn Duyan suggests that the preservation of one’s own life is important enough to allow for the commission of the lesser evil of fornication or adultery.[9] 

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 40 and 87(b)

Comment:

Generally. This Section creates a justification for conduct normally prohibited by the Code, but which is explicitly permitted or required by a governmental institution with the lawful power to authorize the conduct.  If a person has been specifically authorized to engage in conduct that is necessary to protect or further a societal interest, he may act defensively or affirmatively to further the public interest.

Section 42(a) justifies conduct, in certain circumstances, for people whose powers and duties are authorized by law.  Section 42(b) provides a defense for conduct authorized by laws governing the execution of legal process.  Section 42(c) justifies conduct sanctioned by a court or tribunal.  Section 42(d) provides justifications for conduct performed in the context of the armed forces or during the lawful prosecution of war.  Finally, Section 42(e) is a catchall provision justifying conduct authorized by other laws imposing public duties.

Like the lesser evils defense defined in Section 41, the execution of public duty justification is not available, according to Section 40(f), if another justification defense in this Chapter more specifically addresses the situation.  For example, the requirements of Sections 43 (Law Enforcement Authority) or Sections 44 (Conduct of Persons with Special Responsibility for Care, Discipline, or Safety of Others) must be followed if they more specifically address the situation.

Relation to other laws.  There is no explicit justification provided for the execution of public duties in prior Maldivian law.  However, Provision 40 of the prior Penal Code (1966) can be construed as concurring with this Section in that it criminalizes conspiracy to prevent or restrain the due discharge of public duties.  Similarly, provision 87(b) of this Code creates an offense committed by those who refuse to assist a public official in the execution of his public duty.  Given these provisions of the prior law, it follows that Section 42 of this Code comports with prior Maldivian law.  To hold otherwise would be incompatible with prior law.  For example, without this Section, individuals who assisted public officials in their public duties would be held liable for conduct performed while furnishing such assistance.

Islamic law allows the governing authority to exercise powers which would be forbidden to individual members of society.[10]  In general, there is no liability for persons executing public duties in regard to the punishment of hadd offenses, the punishment of homicide and assault, or the exercise of police powers generally.  However, Ibn Rushd points out that corporal punishment that is carried out in a negligent manner can subject the executor of punishment to liability for mistaken killing or injury.[11]

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 40 and 87(b)

Comment:

Generally.  This Section creates a justification for conduct—specifically, the use of force—necessary to bring a person into lawful custody, or to prevent a person’s escape from custody.  Additionally, a person’s conduct is justified if it is necessary to prevent a suicide.  No special statutory authorization is required under this Section if the conduct is necessary for the prevention of suicide or crime.  Note that the definition of necessary given in Section 41(b) applies to the term necessary as used throughout this Chapter, so under this Section the person’s conduct must be necessary both in terms of timing and the amount of harm inflicted.  It should also be noted that this section only applies to law enforcement officers when they are carrying out activities in their official capacity.

Section 43(b) imposes a special requirement on the use of force that risks death or serious bodily injury.  In addition to the person’s use of such force being necessary to execute a lawful arrest, prevent escape from custody, or prevent a suicide, the use of force in those situations must also be necessary to prevent a risk of death or serious bodily injury to others.  As a result, force that results in serious bodily injury or death at the hands of authorities carrying out law enforcement activities should only be in exceptional circumstances.  All efforts should be made to avoid abuse of this license to use force, including periodic review and improvement of law enforcement practices. 

Relation to other laws.  For references to both prior Maldivian law and Islamic law, see the commentary to the previous section.  

Corresponding Provision(s):  None

Comment:

Generally.  This Section creates a justification for the use of force by those charged with a special responsibility for others.  This conduct—including parents’ or teachers’ authority to protect or discipline children, wardens’ authority to impose order on a prison population, and medical professionals’ need to administer care or restrain those posing a danger to others or themselves—might not otherwise fall within the scope of the justifications set out in this Chapter.  

Each part of the Section specifies the categories of persons to whom it applies and the range of conduct allowed.  For example, Section 44(a)(1) specifies that the justifiable conduct of a parent, guardian, teacher or other person entrusted with a child’s care can only be applied to the minor in a person’s care.  One cannot, for example, justifiably assault a third party whose conduct a person believes is contrary to the welfare of the minor.  Section 44(a)(3) further limits when conduct is justified by prohibiting those persons specified by Section 44(a) from engaging in conduct which creates a substantial risk of causing death, serious bodily injury, extreme or unnecessary pain or mental distress, or extreme or unnecessary humiliation.

Similarly, justified conduct under Section 44(b) can only be applied to the patient being treated.  In order to save a patient’s life, a medical professional or someone assisting him cannot, for example, justifiably remove a third-party’s kidney and implant it in the patient without the third-party’s consent.  A “licensed medical professional” is any person who possesses medical credentials that satisfy Maldivian regulations for practicing medicine.  

Section 44(c) applies to corrections officers who are responsible for the operation of a correctional institution.  Section 44(d) applies to individuals authorized to protect the public order on public or commercial transportation.  

Relation to other laws.  Prior Maldivian law does not explicitly create this justification.  Including a provision such as Section 44 in this Code will ensure that individuals with special responsibility for maintaining order and caring for others will be protected when they engage in socially desirable conduct.

Islamic law allows for certain punishments for which no retaliation is warranted.  These include a father disciplining his son and a teacher disciplining his pupil.[12]  This Section limits the situations in which force can be used in a manner that is implicitly understood under Islamic law, such as by requiring that the force used by a parent be necessary to safeguard or promote the welfare of the minor.    

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 25

Comment:

Generally.  This Section entitles a person to use force to protect himself or another from physical attack.  Section 45(b) limits the circumstances in which an individual may use force risking death or serious bodily injury to those cases in which such force is necessary, as defined in Section 41(b).  

The following example illustrates when an individual is permitted to use force risking death or serious bodily injury to defend himself or another person:

Example 1:  A is attacked by B, who is wielding a knife.  Since a knife is a potentially deadly weapon, A is justified in defending himself by shooting B with a gun and would escape liability for B’s death.  Section 45 would apply in a similar manner if A came upon B attacking another person, C, with a knife.

Additionally, a person’s use of force must not be in excess of what a reasonable person would consider proportionate to the harm threatened to himself or another person.  The proportionality requirement is distinct from the necessity requirement found in Section 41(b) in that disproportionate force cannot be used even when it is necessary.

The following example illustrates when an individual’s use of force is disproportionate under Section 45(c)(2):

Example 2:  D seeks to punch E in the stomach.  E is alone and is much smaller and weaker than D, thus his only means of effectively defending himself is a gun in his possession.  Although it is necessary to shoot D to prevent bodily injury, it is a disproportionate amount of force and thus is not justified. 

 Relation to other laws.  Section 45 is similar to Provision 25 of the prior Penal Code (1966).  However, Section 45(a) creates the justification for the protection of oneself and all other persons, whereas Provision 25 of the prior Penal Code (1966) restricts the use of force to protecting “one’s own [life], that of his parents, his children, and that of dependents and relatives whose legal guardianship is attributed to him by religion.”  Maintenance of this restriction in this Code would prohibit individuals from coming to the aid of others whose lives are being threatened unless the threatened individual fits one of the relationship categories defined by Provision 25 of the prior Code (1966).  Therefore, this Code allows people to defend even complete strangers.

Section 45(b) also differs from prior Maldivian law in that it creates a justification for force risking death or serious bodily injury, which is not allowed by Provision 25 of the prior Penal Code (1966).  This Code allows individuals to use potentially deadly force against their attackers in self-defense, but only if such force is necessary to defend against a threat of death or serious bodily injury.  

Islamic law recognizes that force must sometimes be used in legitimate cases of selfdefense.  That being said, Muslim jurists have also sought to appropriately limit the use of force in such situations.  Ibn Duyan states that “whoever is threatened with harm, in relation to his life…has the right to repel it by the easiest means possible” including using deadly force.[13]  Imam al-Nawawi, for example, suggests that one consider retreating before using force.[14]  The Code does not require retreating since determining whether one should flee or use force is best determined on a case-by-case basis.  Therefore, the Code comports with Islamic law by providing a justification defense to someone only as long as he uses no more force than is necessary to repel the attack. 

Corresponding Provision(s):  None

Comment:

Generally.  This Section justifies the use of force by the owner of property, or someone with a special relation to the owner, to protect property from invasion, destruction, or theft.  Section 46(b) prohibits the use of force that creates a substantial risk of causing death or serious bodily injury in order to protect property alone.  One cannot, for example, justifiably shoot a thief who is in the process of stealing a car, barring circumstances that would bring this example under the scope of another Section of this Chapter.

Relation to other laws.  Prior Maldivian law is silent on this matter.  However, the concept of defense of property is accepted by scholars of Islamic law.  For example, Ahmad b. Naqib al-Misri justifies defense of property with the minimum amount of force necessary to ward off the aggressor.  The minimum amount of force is subjectively determined by the person defending his property.[15]  This opinion is supported by al-Nawawi and Ibn Duyan.[16]  Through the restriction imposed in Section 46(b), the Code departs from the view that the use of force risking death or serious bodily injury is justified for the defense of property alone, valuing human life above property.  Likewise, Islamic law values human life over property.

Comment:

Generally.  This Section collects defined terms used in Chapter 40 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter  40’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter discusses defenses to prosecution that apply to situations where the actor is excused from liability.  The various Sections of this Chapter outline the different types of excuses, including involuntary acts or omissions, insanity, immaturity, involuntary intoxication, duress, impaired consciousness, ignorance or mistake, and mistake as to justification.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 24

Comment:

Generally.  This Section sets forth general provisions which apply to all excuse defenses in this Chapter.  Under Subsection (b), the excused actor is distinguished from an actor whose conduct is justified.  One may legally interfere with the conduct of the excused actor, but not with that of the actor whose conduct is justified.  For example, if a person who would be excused for his offense because he is insane is about to harm another person under circumstances that would not give rise to a justification defense under Chapter 40, a passerby may legally restrain the insane man.  However, if a person is about to use force against an aggressor under circumstances that satisfy a justification defense such as defense of person (see Section 45), a bystander may not lawfully interfere with the person.  This is because it is not the conduct that is excused, but the person performing the conduct; the conduct is still considered improper and undesirable.  Furthermore, under Subsection (c), if someone assists an insane person in carrying out the offense, they cannot “share” the excuse of insanity if they themselves are sane.       

Under Subsections (d) and (e), a person is excused for his conduct even if he caused the conditions giving rise to an excuse, unless he caused the excusing conditions with the same level of culpability required for the substantive offense with which he is charged.  For example, a person may join a gang knowing that it frequently engages in criminal activity.  Later, the person may be forced by other gang members at gunpoint to commit a crime he would not otherwise commit.  Although the duress excuse might ordinarily apply to someone compelled to commit a crime at gunpoint, this person knew about the gang’s criminal tendencies and the likelihood that he would be forced into criminal activity.  Because he recklessly caused the excusing condition, he could be liable for an offense requiring a culpability level of recklessness.  Under Section 24(g), proof of recklessness also satisfies culpability requirements of negligence, so he could also be held liable if he is compelled by other gang members to commit an offense requiring negligence.  However, Section 50(e)(2) provides that the person who culpably causes the excusing conditions may also have a defense for that earlier conduct.  Therefore, the gang member may have an immaturity defense depending on the age when he joined the gang or a duress defense if he had been compelled to join the gang in the first place by a threat satisfying the requirements of Section 55 (Duress).  

Subsection (f) provides that a mistaken belief as to an excuse, unlike a mistaken belief in a justification, cannot be a defense to criminal liability.  Conduct is justified by the circumstances surrounding a person’s conduct, while a person is excused because he suffers from a disability.  A person’s erroneous belief that such a disability exists is not relevant to a determination of criminal liability.  In contrast, an actor’s erroneous belief that his conduct is justified does mitigate his blameworthiness and dangerousness in engaging in such conduct; therefore, a mistake regarding a justification may provide an actor with a defense under Section 58 (Mistake as to Justification).

As with the general defenses provided in Chapters 40 and 60, a defendant bears the burden of proving all elements of an excuse defense.  Additionally, unless otherwise provided (as done in Section 57(c)(3)), the standard of proof is a preponderance of the evidence.  See Section 15 (Burdens of Proof; Rebuttable Presumptions) and accompanying commentary.  Even if an actor does not satisfy the requirements of an excuse defense in this Chapter to the extent necessary to completely avoid liability, his partial satisfaction of an excuse defense may be highly relevant in sentencing.    

Relation to other laws.  This Section, particularly Subsections (d) and (e) finds support in the prior Penal Code (1966) which states that: 

Nothing is an offence which is done by a person who at the time of doing it is, by reason of being in a certain state of mind, incapable of knowing the nature of the act or that it may be contrary to law.  This provision shall not be applicable to a person who creates that state of mind on his own volition or with his consent or by doing an act with knowledge that it will or may be likely to cause that state of mind.[17]  

The essence of this provision is that the defendant is liable for his behavior under a certain state of mind only to the extent that he is responsible for entering into that state of mind. 

This principle is reflected in Section 50 of the Code.   

Additionally, Islamic law recognizes excuse defenses, especially in cases of diminished capacity resulting from insanity or other mental impairment.  For instance, Ibn Duyan notes, “the law does not permit punishment of one who is not in command of his mental faculties because there is no benefit in that.”[18]  

Corresponding Provision(s):  None

Comment:

Generally.  This Section excuses actors whose offenses consist of involuntary acts and involuntary omissions.  The involuntary act defense in Section 51(a) applies to conduct that is not the product of an actor’s effort or determination, such as reflexive action or convulsion.

Example 1:  A man jumps off a ledge onto a person below, killing the person.  If he chose to jump, this is a product of his determination, and he can be held liable.  However, if an attacker pushes the man off the ledge, then his movement is not the product of his own determination.  Thus he cannot be held liable. 

 Under Subsection (b), a person is excused from liability based on an omission if he could not reasonably be expected under the circumstances to perform the omitted act.  For example, a man’s child falls into a deep body of water.  Normally, failure to save his child could give rise to omission liability.  However, if he is physically restrained at the time and thus physically incapable of performing the omitted act, he will be excused for his omission.

Relation to other laws.  Prior Maldivian law is silent on this matter.  However, Islamic law supports the notion of exempting involuntary acts or omissions from punishment.  As Ahmed Hasan notes:  “It is essential for the validity of legal responsibility that the act should be within the power of the man so that he may perform it or abstain from it as the case might be.”[19]  In addition, there is a strong public policy reason for allowing an involuntary acts defense.  As demonstrated by the examples in the above paragraphs, punishing those who are physically incapable of avoiding a crime would jeopardize the credibility of the criminal justice system.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 24

Comment:

Generally.  This Section excuses actors who are sufficiently mentally ill that they cannot be held liable for their conduct.  The defense provided in this Section excuses persons who perform conduct constituting an offense under the influence of an uncontrollable mental disease or defect.  It is not enough that a person suffers from some sort of mental disease or defect; that disability must have the effect of making it no longer reasonable to expect him to avoid the offense.  This required effect is captured by the excusing conditions provided in Sections 52(a)(1), (2), and (3), which encompass both cognitive and control dysfunctions resulting from the person’s mental disease or defect.  Significantly, a mental condition characterized by repeated criminal conduct is not excused under this Section.  

Those persons who are acquitted due to this defense are automatically committed pursuant to Section 52(c).  This automatic civil commitment gives the government time to conduct an examination to determine if civil commitment is appropriate for the protection of such persons and the public, even though they may not be imprisoned for the excused offense. 

This commitment for examination may not last longer than sixty days.

Relation to other laws.  Provision 24 of the prior Penal Code (1966) contains general language that encompasses this Section:  “[n]othing is an offence which is done by a person who at the time of doing it is by reason of being in a certain state of mind, is incapable of knowing the nature of the act or that it may be contrary to law.”  There is further support for this in Islamic law.  Ibn Duyan notes that “the law does not permit punishment of one who is not in command of his mental faculties because there is no benefit in that.”[20]  Imam Nawawi also holds that an insanity defense is available for persons known to be insane.[21] 

Section 52(a) could have also included persons who lack substantial capacity to appreciate the illegality of their conduct.  However, because one goal of Islamic criminal law is to have wrongfulness and illegality mirror one another as closely as possible, this option was omitted.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 6 and 7

Comment:

Generally.  Section 53 excuses actors who, being under the age of 21, are not responsible for their crimes due to their immaturity.  Like other disability excuses, immaturity must result in the excusing conditions provided in Section 53(a)(2) in order to excuse an actor.  Because immaturity does not interfere with a person’s ability to accurately perceive the physical nature of his conduct in the way that other disabilities can, this aspect is not a part of the excusing conditions for immaturity.

Immaturity also differs from other disabilities because of the presumptions described in Section 53(b).  For a person under the age of 15, it will be conclusively presumed that his immaturity had the effect required in Subsection (a)(2).  For a person at least 15 years of age, but less than 18 years of age, it is also presumed that his immaturity had the effect required in Subsection (a)(2); however, this presumption is subject to rebuttal.[22]  The presumptions described in Subsection (b) do not prevent application of this defense to an individual above the age of 18 who satisfies the requirements of Subsection (a).  A person over 18 years of age may still satisfy the requirements of this defense; however, he will not receive the benefit of a presumption in determining whether the requirements of Subsection (a) are satisfied.  A person at least 18 years of age at the time of the offense shall be presumed to possess the maturity of an adult, unless this is rebutted by the offender.

Additionally, Subsection (c) notes that a person who is 18 years old at the time of the offense and whose offence is excused under subsection (a) and (b), may still face punishments for offenses explicitly mentioned in the Qur’an.  Generally speaking, these would be exceptional cases since an individual excused under subsection (a) and (b) would likely also be excused under Islamic law.

Those persons who are excused due to their immaturity under this Section must be transferred to the juvenile justice system under Subsection (d).  The juvenile system will take measures to encourage the rehabilitation of the offender and protect the community instead of imposing criminal punishment.

Relation to other laws.  This Section finds support in Provision 6 and 7 of the prior Penal Code (1966) as well as Provision 289 of the Rules Relating to the Conduct of Judicial Proceedings.  Provision 6 provides that “[w]here a person under 10 years of age is found guilty under this Law, he shall not be subjected to the full punishment prescribed for the relevant offence in this Law.  And it is more desired that his act be not regarded in every possible measure as an offence.”70  Provision 7 states that “except in respect of offences relating to the religion of Islam or homicide, the Judge shall have the discretion to mitigate the punishment in respect of every other offence committed by a person under 16 years of age who is found guilty under this Law.”[23]  This Section reflects the judgment consistent with the above provisions that actors under ages 15 and 18 are not as culpable as mature actors.  In addition, this Section adds Subsection (a), which covers immaturity generally.  Lastly, this Section finds support in Islamic law, which generally considers minors to have a greatly reduced legal capacity.[24]  For instance, Imam al-Nawawi has stated that there is no hadd punishment, like amputation, for a thief who is a minor.[25]

Prior Maldivian law deals with immaturity as a jurisdictional issue rather than as a consideration of whether a person’s immaturity interferes with his functioning in such a way that he should be excused for his offense.  This Section maintains the jurisdictional aspect of immaturity through Subsection (d).  However, rather than relying only on an offender’s age to determine which court should have jurisdiction, this Section attempts to determine the impact of immaturity on an offender’s blameworthiness by allowing an excuse defense which takes into consideration the conduct involved, the person’s actual maturity, and his actual ability to function within the confines of the law.  

In addition, parts of Provision 289 of the Rules Relating to the Conduct of Judicial Proceedings are not included because they are more relevant to sentencing guidelines and the operation of the juvenile court.   

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 24

Comment:

Generally.  This Section excuses actors whose conduct is a result of involuntary intoxication.  Like other disability excuses, such as insanity, a person is not excused unless his involuntary intoxication resulted in a lack of substantial capacity to perceive the physical nature and consequences of his offense conduct, to appreciate the wrongfulness of his conduct, or to sufficiently control his conduct.  The disturbance must relate to the person’s conduct constituting the offense rather than his conduct in general.  For example, if an actor is to be excused for assault because involuntary intoxication prevented him from having substantial capacity to control his conduct so as to be justly held accountable for it, he must be unable to control the conduct that is the basis for the charge of assault—it is irrelevant whether he can control his behavior in general.  

Section 54(b) describes when intoxication is considered involuntary.  Section 31 and accompanying commentary should be referred to for the treatment of persons who act under the influence of voluntary intoxication.

Relation to other laws.  Like Section 52 of the Code, Provision 24 of the prior Penal Code (1966) contains the following language that encompasses this section: “nothing is an offence which is done by a person who at the time of doing it is by reason of being in a certain state of mind, is incapable of knowing the nature of the act or that it may be contrary to law.”74  Islamic law lends more specific support for this Section.  Ibn Shurayh and Ibn Hazm, “invalidate the acts of the drunkard whether or not he had an excuse in becoming drunk and regardless of the substance that intoxicated him . . . no retaliation is due against an intoxicated person for damage he causes while intoxicated, nor are indemnities imposed on him, nor is he liable in any other way.  He is imprisoned, however, until he desists from further harm and becomes sober.”[26]  In addition, there are counterpart provisions in the Malaysian Penal Code which state: “intoxication shall be a defense to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing.”[27]  The Malaysian Penal Code excuses the intoxicated actor who, as a result of his intoxication, was not aware of the wrongfulness of his act.  Instead of requiring that the actor not be aware of the wrongfulness of his act, this Code excuses an actor who, through no fault of his own, lacks “substantial capacity” to “appreciate” the wrongfulness of his act.  These broad terms allow for more flexibility in capturing the influence of involuntary intoxication. 

Corresponding Provision(s):  None

Comment:

Generally.  This Section excuses the actor who commits an offense because he was compelled to engage in the offense conduct by a threat.  Whether the threat is sufficiently serious to excuse an actor is determined by whether a person of reasonable firmness in the person’s situation would have been unable to resist.  This standard is objective in that it relies on what a person of reasonable firmness would be able to resist, but the language “in the person’s situation” also allows for some individualization.  As for the actor who is responsible for placing himself into the conditions in which duress occurred, see Section 50(e) and accompanying commentary.  

It should be noted that Subsection (b) introduces a limitation which prevents the use of this defense in a prosecution for murder (under Section 110).  The assumption is that a person of reasonable firmness should always be able to resist taking another person’s life.

Relation to other laws.  The prior Penal Code (1966) contains no express language relating to coercion of the kind mentioned in this Section.  However, according to Ibn Rushd, there is support for this Section in the writings of Muslim jurists, including members of the Shafi’i school.  They argue that coercion waives many obligations in the law because of the “similarity of the state of the coerced with one who has no will of his own.”[28]  In other words, Shafi’i jurists explain that coercion is an impediment to legal obligation.[29]  Muslims jurists have suggested that “the threat [of coercion] must consist of destroying a man’s life or limb, or causing damage to which a man would not consent in any circumstances.”[30]  Although this Code does not limit the threat to one of physical harm, the requirements suggested by Muslim jurists are not inconsistent with the Code’s requirement that a person of reasonableness firmness in the person’s situation must have been unable to resist the threat.  Judging the sufficiency of the threat by what a person of reasonable firmness in the person’s situation would be unable to resist rather than the type of harm threatened more accurately captures the situations in which it would be unjust to hold a person liable because he could not reasonably be expected to act otherwise.  Furthermore, Section 55(b) limits the duress excuse by making it unavailable in a prosecution for murder under Section 110 instead of placing a limitation on the duress excuse by limiting its application to threats of physical harm.  The harm sought to be prohibited by that offense is viewed as being so serious that no threat can excuse it.

In addition, there is a counterpart provision in the Malaysian Penal Code which states: “nothing is an offense which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence.”  Malaysia makes an exception where the “person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.”[31] 

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 24

Comment:

Generally.  This Section creates an excuse for cases where a person’s consciousness is altered due to a demonstrable physiological disease or defect, rather than a “mental disease or defect” as in insanity, that prevents a person from being blameworthy for his actions.  This Section recognizes that there can be physiological causes of the kind of dysfunction that merits an excuse, such as epilepsy, brain tumors, chemical imbalances, etc. that may not qualify as a mental disease or defect and thus may not fall within the scope of the insanity defense provided in Section 52.  Additionally, the terms of the involuntary act excuse provided in Section 51 are extremely strict and would cover very few of these cases, as hardly any acts are not “a product of [the person’s] effort or determination.”  Section 56 covers acts that involve some cognitive control, and therefore fall outside Section 51, but where there is still sufficient impairment of control that the person should not be held accountable for his acts.

This excuse is subject to Section 50(e) that provides that an actor is liable when he culpably causes the conditions giving rise to the excuse.  For example, if a man who knows he suffers from frequent seizures is considered reckless in deciding to drive, he would not be excused for recklessly killing someone while driving, which is manslaughter under Section 111(a).

Relation to other laws.  This Section is consistent with Provision 24 of the prior Penal Code (1966), which states that “[n]othing is an offence which is done by a person who at the time of doing it is by reason of being in a certain state of mind, is incapable of knowing the nature of the act or that it may be contrary to law.” [32] 

In addition, there is a strong public policy reason for allowing an impaired consciousness defense.  As demonstrated by the examples of epilepsy, brain tumors, and chemical imbalances given above, punishing those who are physically incapable of avoiding a crime would jeopardize the credibility of the criminal justice system.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 20

Comment:

Generally.  Section 57 describes the circumstances in which a mistake of law may provide a general mistake defense unrelated to offense elements or to a belief in justification.  For mistakes that provide a defense by negating a culpable state of mind required by an offense definition, see Section 25 (Ignorance or Mistake Negating Required Culpability), and accompanying commentary.  For a mistake as to whether circumstances exist that would justify otherwise prohibited conduct, see Section 58 (Mistake as to a Justification) and accompanying commentary.

Section 57(a) and 57(b) recognize that, in a jurisdiction that adopts a modern criminal code, criminal liability should be imposed only where a written statement of the law’s commands exists prior to the alleged violation of those commands.  It would be unfair to punish citizens for conduct if the government provides inadequate notice of the conduct’s prohibition.  The rationale for criminal liability does not apply where the defendant did not know, and could not reasonably have known, that his conduct was criminal.  Section 57(a) applies when no statement of the law is made reasonably available.  Section 57(b) applies when an existing official statement of the law is inaccurate and a person acts in reasonable reliance on that inaccurate statement.

Section 57(c) creates an excuse defense for a person who honestly and in good faith makes a reasonable mistake as to the legality of his conduct after diligently pursuing all reasonable means to determine the law’s requirements.  To prevent abuse of this provision, Section 57(c)(3) provides that the defendant must prove this defense by clear and convincing evidence, a higher evidentiary standard than the preponderance of the evidence standard normally required for a general defense.  Clear and convincing proof is evidence that is more highly probably to be true than not and about which the judge has a firm belief or conviction.

Sections 57(a)(1), (b)(2), and (c)(2) each require that the defendant not know that the conduct is criminal in order to prevent exploitation of these provisions by people who were not mistaken as to the illegality of their conduct regardless of the availability or accuracy of published law. 

 Relation to other laws.  This Section parallels Provision 20 of the prior Penal Code (1966), which provides that a person does not commit an offense if he is acting with a good faith belief that he is bound by the law to take such action.  In addition, it is a general principle in Islamic law that “if a man does not know the deed which he performs is forbidden, no punishment should be inflicted on him.”[33]  Ahmad b. Naqib al-Misri, for example, holds that “[s]omeone who commits fornication is not punished if he says he did not know it was unlawful, provided he is a new Muslim or grew up in a remote wilderness.”[34]  Ibn Duyan takes a similar view.[35]  Section 57 applies this general principle and reflects the idea that a person should not be punished for violating a law of which he cannot reasonably be expected to be aware.  

Corresponding Provision(s):  None

Comment:

 Generally.  Section 58 creates an excuse defense for actors who engage in conduct under the mistaken belief that the conduct is legally justified in their situation.  Because justification defenses are defined objectively in Chapter 40, an actor who believes that circumstances exist that would give rise to a justification defense does not receive a justification defense if his conduct is not actually justified under the circumstances as they exist.  Instead, he may have an excuse defense under this Section.  The rationale behind this excuse is that an actor who reasonably thinks his conduct is justified is not blameworthy for acting in what would be a justified manner under the circumstances as he believes them to be (See commentary accompanying Section 50(f)). 

 Section 58(a) requires that the person’s conduct satisfy the requirements of a justification defense, as defined in Chapter 40, under the circumstances as he believes them to be.  Thus this provision does not apply in cases where a person is mistaken about his conduct being justified even if the circumstances were as he supposed.  Only mistakes as to the facts of a situation qualify for this defense.  If the person is mistaken as to what the law is regarding justification defenses, he would still not fulfill the requirements of a valid justification and would not satisfy the requirements of mistake as to a justification excuse defense (although he could potentially still have an excuse under Section 57).

The following example illustrates when a person’s mistake of fact may permit this defense:  

Example 1:  A perceives that B is about to shoot him with a gun.  In fact, B is holding a water pistol.  A shoots B to defend himself against a threat of deadly force.  Since A was mistaken about the fact of whether B was about to shoot him, A may receive this defense if he fulfills the requirements of the defense under Subsections (b)(1) and (2).

The following example illustrates when a person’s mistake of law may not receive this defense:  

Example 2:  C perceives that D is about to slap him.  C mistakenly believes that he is justified in shooting D to defend himself contrary to the restrictions on the use of force risking death or serious bodily injury in the defense of person justification.  Regardless of this mistake, the law is as written and thus C would not satisfy the requirements of the justification.  Therefore, C cannot receive the excuse defense provided in this Section.  

The purpose of the requirements in Subsection (b) is to deny the excuse to actors who, despite their mistaken justification, are nonetheless blameworthy with respect to the offense charged. 

Subsection (b)(1) and (2) provide two alternative culpability requirements.  Subsection (b)(1) permits the defense when the person’s mistake is non-negligent.  Thus a faultless mistake would always permit this defense.  Subsection (b)(2) permits the defense—though the mistake is culpable—when the mistake is less culpable than the culpability required by certain elements of the offense charged.  This effectively creates a sliding scale that reduces a person’s liability to a lower offense that matches the culpability of his mistake, or eliminates liability if no such lower offense exists.  

The following example illustrates the sliding scale effect of Section 58(b)(2): 

Example 3:  E perceives that F is about to shoot him with a gun.  In fact, F is only holding a water pistol made of bright yellow plastic.  E purposely shoots F to defend himself against a threat of deadly force.  E’s mistake was reckless, because F’s yellow plastic water pistol clearly was not a real gun.  E thus has a defense against the charge of murder despite having purposely killed F.  His mistake was less culpable than the purpose or knowledge requirements for the result element of murder (causing death).  However, E would still be liable for manslaughter under Section 111(a) since that offense definition only requires recklessness as to causing death.

Relation to other laws.  There are no express provisions in the prior Penal Code (1966) relating to this Section.  However, general support for this Section can be found in Islamic law on the basis of principles mentioned in the commentary to Section 57. 

 In addition, this Section is a natural corollary to Provision 20 of the prior Penal Code (1966), which provides that a person does not commit an offense if he is acting with a good faith belief that he is bound by the law to take such action.  Allowing a defense for those who mistakenly and non-culpably think their actions are justified by the law follows from allowing a defense for those who believe their actions are required by law.  

Comment:

Generally.  This Section collects defined terms used in Chapter 50 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between the terms defined in Chapter 50 and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter discusses defenses to prosecution that apply to situations where a specific circumstance unrelated to the crime warrants an excuse for punishment.  The various Sections of this Chapter outline the different types of nonexculpatory defenses, including when prosecution is barred because it was not commenced within the appropriate time period; where the defendant is unfit to plead, stand trial, or be sentenced; where the defendant has diplomatic immunity, and where the defendant was previously tried for the same offense or a different offense.  The last Section of this Chapter stipulates that prosecution is not barred where the former prosecution was before a court lacking jurisdiction, or was fraudulently procured by defendant, or resulted in a conviction that was held invalid.

Corresponding Provision(s):  None

Comment:

Generally.  Section 60 describes the rules governing the operation of the nonexculpatory defenses set out in Chapter 60.  A defendant who relies on a nonexculpatory defense acknowledges their guilt in committing an offense, but asserts that a specific circumstance unrelated to the crime warrants excuse from punishment.  Nonexculpatory defenses further societal interests that are important enough to allow offenders subject to nonexculpatory defenses to avoid liability.  The fact that they exist separate from an offender’s blameworthiness and the desirability of his conduct is the key feature of the provisions of this Section.

Section 60(a) defines “nonexculpatory defense.”  Section 60(b) provides that unjustified conduct subject to a nonexculpatory defense, such as unjustified conduct by a person who has been granted diplomatic immunity, may be resisted.  Section 60(c) provides that a person who assists in the offense for which another person has a nonexculpatory defense does not have a defense based solely on the other person’s nonexculpatory defense.  A nonexculpatory defense is exclusive to the person protected by this defense; it does not create a shield for others who cannot claim the nonexculpatory defense for themselves.  For example, if a foreign diplomat and a Maldivian citizen commit a crime together, the foreign diplomat may use her nonexculpatory defense, whereas the Maldivian citizen cannot rely on the foreign diplomat’s immunity.  Section 60(d) provides that a person who is mistaken as to a nonexculpatory defense—who, for example, thinks he has been granted immunity by the state—is not entitled to that defense of which he is mistaken. 

As with the general defenses provided in Chapters 40 and 50, the defendant has the burden to prove all elements of a nonexculpatory defense by preponderance of the evidence, unless otherwise explicitly provided.  For further explanation, see Section 15 (Burdens of Proof; Rebuttable Presumptions) and the accompanying commentary.  

Relation to other laws.  Section 60 has no directly corresponding provision in the prior Penal Code (1966).  However, there is a strong public policy argument for including nonexculpatory defenses in this Code.  As mentioned above, nonexculpatory defenses further societal interests that are important enough to allow offenders subject to nonexculpatory defenses to avoid liability.  For example, prosecuting a defendant who is unfit to stand trial would jeopardize the integrity of the criminal justice system.  Nonexculpatory defenses are separated from excuses because they address neither the offender’s blameworthiness nor the impropriety of the defendant’s conduct.

Corresponding Provision(s):  None

Comment:

 Generally.  Section 61 sets a time limitation for commencing prosecutions and provides rules governing the operation of the limitation.  Subsection (a) defines the time limits for prosecuting felonies and misdemeanors and creates an exception for offenses punished in the Quran: homicide offenses (Sections 110-112), theft offenses (Sections 211-216), unlawful sexual intercourse (Section 411), hiraba (Sections 610) and false accusation of unlawful sexual intercourse (Section 612).

Time limitations encourage prompt investigation of crimes and prevent stale prosecutions.  The time limit of 3 years for misdemeanors and 8 years for felonies were chosen in order to balance prompt and accurate investigations against the goal of prosecuting blameworthy offenders at any time, especially those who have committed serious crimes.  It is thought that these time limits provide ample time for the relevant authorities to fully consider a situation and determine whether prosecution is worthwhile.  The time limitation for felonies is greater than that of misdemeanors in recognition that being able to prosecute blameworthy offenders is weighed more heavily against prompt and accurate investigations where offenders are charged with an offense that has been deemed serious enough to be graded as a felony.  

 The value of being able to prosecute, at any time, offenders charged with the above enumerated offenses has been deemed serious enough to outweigh the value of any time limit on prosecution.  In addition, the increasing availability and reliability of physical evidence makes prosecuting old cases more feasible.  If the passage of time has made evidence unreliable, the defense can point out this weakness and argue that the evidence should be afforded little or no weight.  Prosecutorial discretion to decide which cases are worth the investment of resources will prevent old cases with insufficient evidence from being prosecuted.

Relation to other laws.  Section 61 has no directly corresponding provision in prior Maldivian law.  However, there is a strong public policy argument for setting time limits for commencing prosecutions.  The integrity of the criminal justice system would be jeopardized if stale prosecutions of old cases with insufficient evidence were not controlled in some way.

Corresponding Provision(s):  None

Comment:

Generally.  Section 62 sets the fitness standard under which defendants will not be required to face criminal adjudication.  This defense ensures that all criminal defendants will have the mental and physical capacity to aid in their own defense, testify on their own behalf, confront witnesses, and effectively communicate with counsel.  This defense includes but is not limited to criminal defendants who are clinically deemed mentally disabled beyond capacity to understand the nature and consequences of their actions.  Mental disability must be ascertained by a certified or otherwise recognized practicing physician.  Unlike excuse defenses, the inquiry is not whether the defendant’s mental or physical condition at the time of the offense should prevent her from being liable for the offense, but rather whether the defendant’s mental or physical condition at the time of prosecution will interfere with her fitness to plead, stand trial, or be sentenced.

Section 62(b) stipulates that a person whose trial is delayed or abandoned under this Section shall be automatically committed for an examination to determine whether she is subject to civil commitment.  The purpose of this civil commitment is solely to conduct an examination to determine if civil commitment is appropriate for the protection of such persons and the public, even though they may not be imprisoned under the criminal system.  Note that this Section operates in the same way as Subsection (c) under Section 52 (Insanity) (See commentary accompanying Section 52(c)).

Relation to other laws.  Section 62 has no directly corresponding provision in the prior Penal Code (1966).  However, the prior law supports the policy that, in order to commit an offense, a person must have a specific mental capacity, namely the ability to understand the nature of his or her act.[36]  Furthermore, prior Maldivian law protects minors from full punishment for crimes,[37] reinforcing the policy that, in order to face full prosecution, a defendant must have the full capacity of an adult to understand the nature and consequences of his actions.

This Section is also supported by the Islamic legal principle requiring the proper mental and physical condition to stand trial.  For example, if a defendant is ill, some jurists, like Ibn Rushd, postpone execution of hadd sentences, even after the defendant has been convicted, until the defendant is physically well.[38]

Subsection (a)(1) is supported by the statement by Abu Bakr al-Sarakhsi: “As for the capacity of obligation, it means fitness for bearing the command of obligation.  If anyone has this fitness, he will be fit for an obligation being imposed on him; but one who does not have it, will not be fit for bearing an obligation.”[39]   Muslim jurists have stated that this capacity for legal obligation is directly connected to the “power of understanding” in an individual.[40]

Subsection (a)(2) is supported by the general principle in Islamic law that the defendant must “take personal charge of his defense.”[41]  If this is not possible then the defendant should not stand trial until such time as he is able to do so.

Finally, there is a strong public policy argument for setting a fitness standard under which defendants will not be required to face criminal adjudication time limits for commencing prosecutions.  As mentioned in the commentary to Section 60, the integrity of the criminal justice system would be jeopardized if the State prosecuted those unfit to stand trial.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 4

Comment: 

Generally.  Section 63 protects specific defendants from the requirement to plead, stand trial, or be sentenced.  These defendants are generally foreign dignitaries, ambassadors, or representatives of foreign institutions.  These defendants must be formally granted immunity by the State. 

Relation to other laws.  Section 63 replaces Provision 4 of the prior Penal Code (1966).[42]  Section 63 clarifies that immunity is not automatically granted to persons by virtue of their positions.  Instead, a person must be granted immunity by the Maldivian government, either because an international treaty provides it or because the person occupies a position listed in Section 63(b).  

Corresponding Provision(s):  None

Comment:

Generally.  Section 64 sets out the rules governing the effect of former prosecutions on subsequent prosecutions for the same offense.  This Section protects a defendant from being tried or punished twice for the same offense.  

This bar arises in the narrowest sense of a violation of the same statute based upon the same facts.  A bar arises in four general situations:  (a) where the first prosecution results in an acquittal; (b) where the first prosecution results in a conviction; (c) where the first prosecution results in a final order or judgment in favor of the defendant on the merits which is inconsistent with conviction for the offense charged; and, (d) where the first prosecution is improperly terminated after jeopardy has attached.

Relation to other laws.  Section 64 has no directly corresponding provision in prior Maldivian law.  However, Provision 109 of Rules Relating to the Conduct of Judicial Proceedings does require any retrial or rehearing which imposes a new punishment to “deduct the term of the previous sentence” from the new one.  In addition, there is a strong public policy argument for barring subsequent prosecution where the defendant has already been prosecuted. 

The integrity of the penal system would be jeopardized if individuals were tried numerous times for the same offense.

Note that this Section differs from Provision 109 in that Provision 109 also requires that the matter be sent in writing to the Ministry of Justice.  This Section considers that requirement unnecessary because it places limitations on subsequent prosecutions.  

Corresponding Provision(s):  None

Comment:

Generally.  Section 65 sets out rules governing the effect on a criminal prosecution of former prosecutions for a different offense.  This Section requires, in certain circumstances, that different crimes arising out of the same conduct be tried together.  Like Section 64, this Section protects the defendant by preventing the prosecution from re-litigating factual issues decided in the defendant’s favor at a previous trial.

There are five categories of cases in which a prior prosecution bars a subsequent prosecution for a different offense:  (a) offenses of which defendant could have been convicted on the first prosecution either based on the same conduct or arising from the same criminal episode;  (b) offenses based on the same conduct; (c) where the prior prosecution resulted in acquittal, final order or judgment for the defendant that necessarily required a determination inconsistent with a fact that must be established to convict of the second offense; and, (d) where the prior trial was improperly terminated and the subsequent prosecution is for an offense for which the defendant could have been convicted had the prior prosecution not been improperly terminated.

Relation to other laws.  Section 65 is encompassed in the principles present within prior Maldivian law, specifically provisions 109, 111, and 186 of the Rules Relating to the Conduct of Judicial Proceedings.  In addition, there is a strong public policy argument for setting rules governing the effect on criminal prosecutions of prior prosecutions for different offenses.  The integrity of the criminal justice system would be jeopardized if factual issues decided in the defendant’s favor in previous trials were re-litigated.

Corresponding Provision(s):  None

Comment:

Generally.  Section 66 identifies various cases where former prosecutions should not act as a bar to subsequent prosecutions, including where the original court lacked jurisdiction to hear the case, the defendant obtained the prior prosecution with the intent of avoiding a harsher sentence, or the prior conviction was invalidated on procedural grounds unrelated to the merits.

Relation to other laws.  Section 66 has no directly corresponding provision in prior Maldivian law.  In the interest of achieving finality in court proceedings, this Code narrows the circumstances in which subsequent prosecutions may be conducted.  In addition, this Section is consistent with the procedural rule of Islamic law that judges may reopen proceedings when new information is brought to their attention.[43]  

Comment:

Generally.  This Section collects defined terms used in Chapter 60 and provides cross-references to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between the terms defined in Chapter 60 and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter sets out the liability for corporations and other non-human entities.  Section 70 establishes liability for corporations as well as unincorporated associations.  Section 71 establishes liability for individuals acting on behalf of a corporation or association.  

Corresponding Provision(s):  None

Comment:

Generally.  Section 70 sets out the circumstances under which a corporation may be held criminally liable for its actions.  Liability may be imposed on corporations in certain circumstances to deter their agents from violating the law or failing to perform a legal duty.  Unincorporated associations should merit criminal liability to the same extent as corporations, as such associations often resemble corporations in every respect except for the fact they have not formally incorporated.  The concerns with deterrence of criminal conduct and punishment of a collective criminal enterprise are present with unincorporated associations no less than with corporations.  Corporations incorporated pursuant to laws other than the Companies Act of Maldives are also subject to this Chapter.

Section 70(a)(1) applies to an agent in a position of supervisory or managerial responsibility who, acting within the scope of his corporate authority, commits an offense or authorizes, requests, or commands another corporate agent to commit an offense on behalf of the corporation.  In such a scenario, the corporation is liable for that offense.

Section 70(a)(2) applies to any employee or agent of the corporation or association who violates the law while acting within their corporate capacity.  70(a)(2) contains additional requirements for imposing liability on a corporation or association, as compared to 70(a)(1), because 70(a)(2) applies to actions taken by any person authorized to act on behalf of the corporation or association while 70(a)(1) applies only to actions by the board of directors or a high managerial agent.  

Liability under Section 70(a)(2) is limited by the due diligence defense in Section 70(b), which prevents liability in situations where a corporate agent attempted in good faith to follow the law, except for strict liability offenses or when the legislative purpose of the statute defining the offense supports imposing liability despite due diligence.  Thus, if an employee violates the law while acting in the scope of his employment, the burden shifts to the corporation or association to prove that it diligently made an effort to prevent the employee’s criminal behavior.  This defense is not available for activity pursuant to Section 70(a)(1) or Section 70(a)(3) because the concern of excessive corporate liability that is present when a corporation or association is held liable for the actions of any corporate agent is not similarly present in the situations covered by 70(a)(1) and 70(a)(3).  Section 70(a)(2)(B) imposes liability on a corporation or association when a statutory provision defining an offense requires a corporation or association to discharge a specific duty and the corporation or association fails to take such action.

Section 70(a)(2)(B) is meant to allow the People’s Majlis the freedom to designate specific corporate agents liable for enumerated criminal offenses if it chooses to do so.  For example, the Majlis would be free to assign liability for all corporate accounting irregularities to the Chief Financial Officer rather than to the corporation generally.  70(a)(2)(B) ensures that such a law would not conflict with the Code.

Relation to other laws.  Prior Maldivian law does not address corporate or non-human liability.  There is disagreement as to whether Islamic law traditionally recognized legal rights, responsibilities or personality of non-natural persons such as corporations.[44]  However, the legal personality of the corporation has been recognized by the Islamic Fiqh Academy of the Organization of Islamic Conferences (OIC) on the basis of the concept of sharikah musahamah.[45]  Thus, the principles in this Section are supported by modern Islamic jurisprudence on corporations.[46]  

Furthermore, Islamic legal principles relating to vicarious liability also support this section.  For instance, it is generally held that “an employer may be civilly liable for the practices of his subordinates.”[47]  This principle can be expanded to cover the corporate setting and criminal liability.  In addition, if the law grants corporations legal personality for business purposes, then it should also hold them legally responsible for their actions.  

Finally, there is a strong public policy argument for holding corporations criminally liable for their actions.  Irresponsible corporations have the capacity to do great harm to society and the environment.  Imposing liability on corporations in certain circumstances can deter their agents from violating laws or failing to perform legal duties intended to protect society and the environment.  Criminal liability for corporations holds particular importance for the Maldives, where much of the economy is dependent on the environment, which could be jeopardized by irresponsible corporate action or inaction.

Corresponding Provision(s):  None

Comment:

Generally.  This Section prevents individuals from escaping liability by virtue of having acted on behalf of a corporation or association and establishes that individuals may be punished fully as individuals even though their liability stems from actions made on behalf of their corporation.

A person may only be accountable for conduct he performs on behalf of a corporation to the same extent he would be liable for performing such conduct on his own behalf.  In other words, a person may not be accountable under this Section for an offense that applies only to corporations and not to individuals. 

Relation to other laws.  Although prior Maldivian law is silent on this matter, a basic principle of Islamic law is that “a person is totally responsible for his actions—a responsibility brought upon him by his reason, his will, inclinations and choice.”[48]  Many jurists base this principle of individual responsibility on the Qur’an: “[U]nto them shall be accounted what they have earned, and unto you, what you have earned.”[49]  

In addition, this Section is justified by the same public policy arguments listed in the commentary to the above Section 70.  If this Code is to deter agents of corporations from acting or failing to act in a way that harms society and the environment, then these agents cannot be allowed to escape liability by virtue of having acted on behalf of a corporation or association.  As noted in the introduction to the commentary to this Section, these individuals must be punished fully as individuals even though their liability stems from actions made on behalf of their corporation.

Comment:

Generally.  This Section collects defined terms used in Chapter 70 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between the terms defined in Chapter 70 and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter defines the requirements for liability for offenses in their initial, early or preparation stage, including criminal attempt, criminal solicitation, and criminal conspiracy.  This Chapter also provides defenses to inchoate offenses, including where the defendant is a victim of the offense or his conduct is inevitably incident to its commission and where the defendant, after committing an inchoate offense, voluntarily renounces his criminal purpose and prevents the inchoate offense from becoming a completed offense.  Section 87 of this Chapter establishes a separate offense for the possession of instruments of crime.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 9 and 88(26); Criminal Court Circular 13/SP/2003

Comment:

Generally.  Section 80 defines the requirements for liability for an attempt to commit an offense.  Liability for attempt is imposed when a person, acting with the culpability required for the underlying offense, purposely engages in conduct constituting a substantial step toward the commission of the offense.  Attempts are subject to liability because, like completed offenses, they involve a culpable mental state and dangerous conduct.  Yet attempts differ from completed offenses in that, due either to circumstance or the actor’s failure to complete the offense, the harm that would otherwise result does not occur, or occurs to a lesser extent.  

Subsection (a)(2) includes the phrase “if the circumstances were as he believes them to be.”  If the defendant perceives circumstances such that he believes he is attempting to commit an offense, he is liable under Section 80.  There is no defense of impossibility.  For example, a person is liable for an attempt if he thinks he is buying drugs, but in fact he is not.  However, if the defendant perceives circumstances such that his conduct would not constitute a substantial step towards the commission of an offense, he should not be liable under Section 80.

The following example illustrates when conduct may be considered a substantial step so as to impose liability for criminal attempt:

Example 1:  A intends to kill B.  Knowing B’s route home after work, A lies in wait for B with a gun on a deserted street.  B takes a different route home, and A is apprehended by a police officer that notices him lurking in an alley with a gun.  Lying in wait for a contemplated victim constitutes a substantial step when corroborative of the person’s purpose to complete the offense.  A’s waiting along B’s known route home with a deadly weapon is corroborative of A’s intent to murder B, as is his possession of a gun in circumstances indicative of such intent.  Thus A is liable for attempted murder.

Relation to other laws.  Prior Maldivian law does not define attempt liability.  However, provision 9 of the prior Penal Code (1966) indicates that attempt liability exists:  “[w]here there is an intention or an attempt to commit an offence and where such offence is completed or attempted to be completed by one act or several acts, all such acts shall be constituted as one offence.”[50]  Provision 9 thus prohibits punishment for both an attempt and a completed offense.  An identical prohibition is found in Section 94 (Prosecution for Multiple Offenses) of this Code.  In addition, Criminal Court Circular 13/SP/2003 specifically criminalizes attempting to sexually assault another.

 Islamic law does not impose attempt liability in the case of hadd offenses or intentional homicide and assault.  Courts may, however, impose discretionary punishment (ta'zir) on persons whose conduct would, in general, conform to criminal attempt as that offense is defined in this Chapter.[51]  Thus, Section 80 is in conformity with Islamic law both in its imposition of liability for criminal attempt and in its reduction by one grade of the punishment for attempt liability (see the comment to Section 86).  The requirement of Subsection (a)(1) that the person act “with the culpability required for commission of the offense” ensures that the person is punished only if he has the blameworthy state of mind required for the commission of the underlying offense.

Some scholars, like ‘Abd al-Qadir ‘Oudah, have found authority for the “substantial step” requirement of Subsection (a)(2) in hadith.[52]  For example, scholars cite the Prophet’s teaching that “Allah has forgiven the people belonging to my Ummah for the notions coming into their minds unless they utter them or put them into practice.”[53]  Mere preparation is not punishable under Section 80 or Islamic law.  

Some scholars of Islamic law claim it is improper to punish attempt, because the law does not define attempt liability with sufficient precision.[54]  Subsection (b)(1) addresses this concern by requiring that conduct be “strongly corroborative of the person’s purpose to complete the offense” to constitute a “substantial step” within the meaning of Subsection (a).  Also, Subsection (b)(2) describes seven kinds of conduct that are always sufficient to constitute a “substantial step” so long as they are strongly corroborative of the person’s purpose to complete the offense.  

The general analysis in this comment with regard to the jurisprudential basis for attempt liability under Islamic law applies to the other inchoate offenses defined in this Chapter.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 12

Comment:

Generally.  Section 81 provides for liability for a person who solicits another person to commit an offense.  The offense of solicitation recognizes that a person who intends to promote or facilitate the commission of an offense, and who is willing to instigate another to act so as to become liable for such offense, demonstrates both intention and a dangerous inclination toward criminality.  The criminal solicitor thus must act with the intention required for the underlying offense.  The independent act of commanding, encouraging, or requesting another person to commit the offense takes the place of the substantial step towards commission of the offense required for attempt liability under Section 80 or the conduct towards the objective of the conspiracy required for conspiracy liability under Section 82.  The offense of solicitation also takes into account the additional danger of group criminality that arises when a person solicits another to commit an offense.

Relation to other laws.  Attempt is criminalized in prior Maldivian law as evidenced by Provisions 88(26) and 12 of the prior Penal Code (1966).  Provision 12 of the prior Penal Code (1966), governing abetment, criminalizes “advising or instigating in any manner to commit an offence or referring directly or indirectly to any such act,” and resembles Section 81 of this Code rather closely.[55]  There are, however, important differences between the prior provision 12 and this Code’s Section 81.  

First, Section 81(a)(1)(B) requires that a person act “with the purpose of promoting or facilitating [the] commission [of an offense].” Provision 12 of the prior Penal Code (1966), on the other hand, does not have a specific culpability requirement.  Note that while a person must act with purpose as to promoting or facilitating the commission of the offense, he must only act with the culpability required for the commission of the offense as to the elements of the offense.  Second, Section 81(a)(2) punishes a person if he “commands, encourages, or requests” another to act so as to become liable for an offense; Provision 12 of the prior Penal Code (1966) punishes a person if he “advises or instigates” another to commit an offense, or if he “refer[s] directly or indirectly to any such [offense].”  The word “advise” in provision 12 of the prior Code is somewhat ambiguous; Webster’s Revised Unabridged Dictionary (1996) gives its two primary meanings (in order) as:  “[1] to offer advice to; counsel, and [2] to recommend; suggest.”  The first meaning of “advise” applies not to this Section, but to Section 30(b)(1) (Accomplice Liability).  The second meaning is synonymous with “encourage.”  Provision 12 of the prior Code is more expansive than this Section because it punishes both direct or indirect references to the commission of an offense.  This Code does not punish indirect offenses because if such a rule was applied consistently, it would criminalize all discussion of crime, regardless of the speaker’s culpability or dangerousness.  For example, if A discusses a crime he reads about in the paper, he should not be punished for such an indirect reference.  

The third difference between this Section and Provision 12 of the prior Penal Code (1966) is that Section 81(b) punishes un-communicated solicitations, so long as a defendant’s conduct “is designed to accomplish such communication.”  The rationale for punishing unsuccessful solicitations parallels the rationale for punishing attempts; a person’s culpability and dangerousness do not diminish simply because his conduct fails to achieve its intended result.  

 Additionally, it should be noted that neither this Section nor Provision 12 of the Prior Code (1966) requires an overt act on the part of the recipient of a criminal solicitation.  As with un-communicated solicitations, a person establishes his culpability and dangerousness once he satisfies the offense requirements in Section 81(a).  The acts (or lack thereof) of the recipient are immaterial to his liability under this Section.

Finally, criminal solicitation as defined in this Section would, as in the case of the other inchoate offenses defined in this Chapter, be subject to a court’s discretionary punishment (ta’zir) under Islamic law.  For further analysis of the jurisprudential basis for attempt liability under Islamic law, refer to the commentary to Sections 80 and 86. 

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 12(b) and 13

Comment:

 Generally.  Section 82 establishes liability for the offense of conspiracy, which is committed when two or more persons agree to commit an offense and any one of them commits an overt act toward the object offense with the purpose of promoting or facilitating its commission.  As with Section 81, this Section requires that a conspirator act with the intention required for the commission of the underlying offense as well as the purpose of promoting or facilitating commission of the offense.  Conspiracy differs from other inchoate offenses in that culpably agreeing to commit an offense, coupled with any conduct towards the objective of the conspiracy, establishes both culpability and dangerousness, regardless of whether the object offense is ever committed.  In addition, all of the conspirators are held liable for the conduct of any one of them.  

 It is important to note the difference between conspiracy and complicity.  Complicity is a doctrine of imputation, allowing for the imputation of one person’s conduct to another (to satisfy an element of the offense that otherwise would not be satisfied), while conspiracy is an inchoate offense.  An accomplice is liable for the underlying offense (through the mechanism of complicity), while a conspirator is liable for an inchoate form of the offense (conspiracy).

Consistent with the universal principle that a person may not be punished for thoughts alone, Section 82 requires more than mere intent to commit a crime; it also requires that one of the conspirators engage in conduct toward the objective of the conspiracy.

Subsection (c) is designed to punish criminal organizations in which many of the participants do not know each other.  

The following example illustrates when individuals unknown to each other may be held liable for the same conspiracy:

Example 1:  A agrees with B (the ringleader) to commit the offense; then, unbeknownst to A, B agrees with C to commit the same offense.  A has not agreed to anything with C.  However, if A could reasonably have expected that B would agree with another person to commit the same offense, Section 82(c) dictates that A be deemed to have agreed with C to commit that offense.  As a result, A and C are liable as co-conspirators with B.  

Section 82(d) simply recognizes that conspiracies cannot last forever.  There are three ways a conspiracy may end.  First, a conspiracy may achieve its objective.  Second, law enforcement may “frustrate” a conspiracy by prosecuting its members or otherwise interfering and foiling the conspiracy.  Third, a conspiracy may be abandoned by its members.  Subsection (d) makes it clear that once a person has committed an offense under Subsection (a), conspiracy liability exists until either the conspiracy ends or the person withdraws from the conspiracy.  

Section 82(e) imposes one of two requirements on a person who wishes to withdraw from a conspiracy.  Such a person must inform all of his co-conspirators of his withdrawal, or must inform law enforcement authorities of the existence of the conspiracy and of his participation therein.  Ordinarily, the withdrawal of one conspirator will provide law enforcement authorities with enough information to frustrate a conspiracy and prosecute its members.  However, there may be cases where, due to the effect of Section 82(c), a person may effectively withdraw from a conspiracy and yet lack sufficient information about co-conspirators and other aspects of the conspiracy to enable law enforcement to frustrate the conspiracy and prosecute its members.  Despite these difficulties, the former conspirator’s withdrawal should be given full effect in these cases.

 Section 82(f) provides that a conspiracy is abandoned as to all conspirators if no overt act towards the objective of the conspiracy has been committed by any conspirator during a period equal to the applicable period of limitations provided in Section 61 (Prosecution Barred if Not Commenced Within Time Limitation Period).  Note that Section 61 prescribes a period of limitations for misdemeanors (3 years) and felonies (8 years) and that the exception for offences with specific punishments in the Quran does not apply to this Subsection.  

Section 82(g) makes it clear that neither withdrawal nor abandonment is a defense to conspiracy, except as provided by Section 85 (Defense for Renunciation Preventing Commission of the Offense).  Sections 82(e) and 82(f) are included to describe the concepts of withdrawal and abandonment as they are used in Subsection (d) and not to provide a defense to liability.

Relation to other laws.  Provision 12(b) of the prior Penal Code (1966) parallels Section 82(a).  Provision 12(b) of the prior Code criminalizes “conspiring to commit an offence and committing an act for the purpose of taking part in the commission of an offence.”  First, Provision’s 12(b)’s “conspiring to commit an offense” is equivalent to this Code’s Section 82(a)(1)’s requirement of an agreement to commit an offense.  Second, the prior Code’s phrase “committing an act for the purpose of taking part in the commission of an offence” is virtually identical to the requirements in Sections 82(a)(1) and 82(a)(2) of this Code.  Finally, the culpability required in both prior Provision 12 and this Code’s Section 82 is a purpose to promote or facilitate the commission of the underlying offense.  

 This Section differs from prior Maldivian law in several ways.  First, Provision 13 of the prior Penal Code (1966) does not define substantive conspiracy liability; rather, it states that participation in a conspiracy establishes accomplice liability as a matter of law.  In contrast, as shown in Section 30(2), this Code views conspiracy and accomplice liability separately because aiding a crime and conspiring to commit a crime are not necessarily the same thing.  One could aid another as an accomplice to commit a crime, but if they have not previously conspired to commit the crime in a certain manner, then they are not co-conspirators.  For example, if A robs and injures one of the guards in the process, and there is no agreement between A and B about injuring the guard, there is no liability for conspiracy.  Alternatively, it is possible to engage in a conspiracy and not have accomplice liability.  For example, A and B agree to break into C’s home.  A satisfies the culpability requirements of 82(a)(1).  B goes out and buys tools to be used in breaking into C’s home which constitutes “conduct towards the objective of the conspiracy” by any one of the persons in the conspiracy.  This is as far as their plan gets before the police intervene.  Here, A is liable for conspiracy but is not an accomplice.

 Second, this Section differs from Provision 27 of the prior Penal Code (1966) in that punishment for conspiracy does not differ based on the seriousness of the underlying offense, nor does punishment depend on whether the individual acted to fulfill the objective.  However, both Provision 27 and this Section reduce liability for inchoate offenses.

 Third, this Section extends liability to a conspiracy to commit any offense.  It therefore obviates the need for specific conspiracy prohibitions such as the one found in the 1990 Law on the Prevention of Terrorism in the Maldives,[56] except to the extent that such prohibitions impose punishments harsher than those available under Section 82.

No prior Maldivian law addresses the topics covered in Sections 82(b) through 82(g).  This Code includes these Subsections because they are consistent both with Islamic law and with the Code’s policy of punishing culpable and dangerous conduct.  Sections 82(b) through 82(g) are in accord with expansive conspiracy liability, which Islamic law generally endorses.  Most Muslim jurists punish conspiracy as a ta’zir offense.[57]  However, jurists generally do not explain in detail the elements of conspiracy or the limits of the offense’s reach.  The jurists most often simply state that a conspiracy requires a criminal “meeting of the minds” and that the doctrine of unilateral conspiracy is incompatible with Islamic law.[58]  

Section 82(a)(2) is supported by Islamic law because, as ‘Abd al-Qadir ‘Oudah explains, jurists agree that conspiracy liability should attach only when an agreement is proven.[59]  This Code respects this concern.  As long as the other requirements of Section 82(a) are satisfied, Section 82(a)(2) imposes liability for both implicit and explicit agreements to commit an offense, if the prosecution proves the existence of an agreement of some kind to a practical certainty.  

Section 82(b) defines “objective of a conspiracy,” a term used in Section 82(a)(3), to include (in addition to the commission of the object offense) escape from the scene of the offense, distribution of the proceeds of the offense, and measures, other than silence, for concealing the offense or obstructing justice in relation to it.  Subsection (b) thus seeks to expand conspiracy liability to reach those persons who participate in these additional activities.  

Section 82(c) expands on Islamic law’s requirement of a “meeting of the minds” for a punishable agreement in a manner that is consistent with the expansive view taken of conspiracy liability by Islamic law.  

Corresponding Provision(s):  None

Comment:

Generally.  Section 83 rejects the notion that the liability of a defendant who has committed an offense under Section 81 (Criminal Solicitation) or Section 82 (Criminal Conspiracy) is reduced or precluded by circumstances unique to the person with whom the defendant conspired or whom the defendant solicited.  The rationale underlying Section 83 is that the culpability and dangerousness of a person who has committed an offense under Section 81 or Section 82 are unrelated to the liability of another person because the culpability and dangerousness of a person who commits conspiracy or solicitation stem from the willingness of that person to commit a crime as evidenced by committing conspiracy or solicitation. 

Relation to other laws.  Prior Maldivian law is silent on the issues addressed by Section 83.  However, Islamic law endorses Section 83’s rejection of the notion that the liability of a defendant who has committed an offense under Section 81 (Criminal Solicitation) or Section 82 (Criminal Conspiracy) is reduced or precluded by circumstances unique to the person with whom the defendant conspired or whom the defendant solicited.[60] 

In addition, as mentioned above, the public policy rationale underlying Section 83 is that the culpability and dangerousness of a person who has committed an offense under Section 81 or Section 82 are unrelated to the liability of another person.

Corresponding Provision(s):  None

Comment:

Generally.  Section 84 provides a defense to the offenses of solicitation and conspiracy where the defendant is a victim of the offense or his conduct is inevitably incident to its commission.

Subsection (a) protects people who are victims of the underlying offense—for example, a person who agrees to pay money to an extortionist, thereby technically entering into a “conspiracy” with the extortionist.

Subsection (b) covers situations where, because a person’s conduct is ancillary to the underlying crime, it is unclear whether the person should be held liable.110  For example, it is not clear whether the purchaser should be liable for conspiracy to traffic in stolen goods. Under Subsection (b), the legislature would still be free to decide on a case-by-case basis that such people should be subject to liability by writing the law defining the specific underlying offense to reflect that understanding.

 The defense in Subsection (a) has been included because it seems fundamentally unjust to punish the victim of an offense, even if the victim satisfies the technical requirements for liability.  

 The defense in Subsection (b) has been included because it is not clear that liability is intended for a person whose conduct is ancillary to an underlying offense.  Rather than etch a decision on this question into the stone of the Code, it is more appropriate to leave this decision to the people of the Maldives, acting through their elected representatives.

Relation to other laws.  Prior Maldivian law is silent on the issues addressed by Section 84.  However, this Section can be construed as a corollary to Islamic law’s requirement of a “meeting of the minds,” mentioned earlier.  More specifically, where a person is a victim of the underlying offense, as in Subsection (a), or a person’s conduct is ancillary to the underlying crime, as in Subsection (b), the “meeting of the minds” requirement cannot be said to have been met.  

In addition, there is a strong public policy argument for providing a defense to the offenses of solicitation and conspiracy where the defendant is a victim of the offense or his conduct is inevitably incident to its commission.  For example, as mentioned above, this defense would protect a person who agreed to pay money to an extortionist, thereby technically entering into a “conspiracy” with the extortionist.  Because the person who pays the extortionist is more of a victim than a co-conspirator of the extortionist, he should not be criminally liable for his actions.  This Section thus maintains the integrity of the criminal justice system by providing a defense for people who find themselves in such situations. 

Corresponding Provision(s):  None

Comment:

Generally.  Section 85 provides a defense for persons who, after committing an inchoate offense, voluntarily renounce their criminal purpose and prevent the inchoate offense from becoming a completed offense.  As Subsection (b) makes clear, however, renunciation is not “voluntary” when it is merely a response to a fear of being caught, or a tactical decision to pursue the crime in a different way.  Under Subsection (c), the defendant would bear the burden of proving this defense by a preponderance of the evidence.

Relation to other laws.  Prior Maldivian law is silent on the issues addressed by Section 85.  However, Islamic law supports a broad renunciation defense, whatever the actor’s motive, so long as the offense is not completed and none of the steps accomplished on the way to completion were crimes in and of themselves.[61]  As ‘Abd al-Qadir ‘Oudah points out, this policy reflects the Quran’s interest in sparing those who renounce by repenting.[62]  ‘Oudah also says that under Islamic law, to absolve the actor of liability, renunciation must be voluntary and complete.[63]  Section 85(a) similarly requires that renunciation must be voluntary and complete, and Subsection (b) describes what makes renunciation voluntary and complete.

 Although the renunciation defense may not be necessary to provide an incentive for an offender to stop his criminal conduct, since inchoate offenses are graded less seriously than completed offenses, it is still desirable to include such a provision because a person who voluntarily and completely renounces before completing the offense no longer evidences a willingness to commit the offense and is therefore no longer blameworthy or dangerous.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 9, 10, 11, 12, 13, 14, 52, and 136

Comment:

Generally.  Unlike other Chapters in the Code, Chapter 80 grades the offenses defined in several sections in a single section on grading.  This format is used mainly for efficiency, but it also highlights what the offenses in Sections 80 through 82 have in common, namely reduced liability in relation to the attempted, or solicited, or conspired to offense.  

Section 86 grades all inchoate offenses one grade lower than the offense attempted, solicited, or agreed to.  This system relates the seriousness of the inchoate offense to that of the underlying offense, but reduces liability in recognition of the fact that the inchoate offense does not generate the resulting harm with which the underlying offense is concerned.  Reduced liability for the incomplete offense also creates an incentive for an offender to stop short of the completed offense and thus promotes public safety.  

The sentencing factor addressed in Section 86(b) is intended to punish more seriously crimes that are nearly completed or unsuccessfully completed.  The first category of attempts, conspiracies, and solicitations that should be punished more seriously are those in which the conduct performed nearly approaches completion of all the conduct required for the offense. An example of such a nearly-complete offense would be a group of would-be bank robbers who draw up a plan, gather weapons, recruit accomplices, and drive to the scene, only to leave without committing the robbery because several police officers happen to be nearby. In such a case, the offenders have shown that they have made substantial preparations for the offense and did not commit the offense simply for fear of apprehension at that particular time.

The second category of attempts, conspiracies, and solicitations that should be punished more seriously are those in which the offenders complete all the conduct that would be necessary for the completed offense, but where the conduct is unsuccessful.  An example of such a case would be an attempted murder, where the offender fires a weapon at a person and misses. In that case, the offender completed all the conduct necessary.  Only because the bullet missed did the offender fail to commit murder.  Another example would be the commission of an impossible attempt, such as one where the intended victim or accomplice is a police officer, who attempts to catch the offender in a bad act.  For instance, if a police officer attempts to catch a thief by placing valuable merchandise in a store window, the officer actually wishes that the merchandise be stolen.  Therefore, even if the offender actually takes the items, the offender cannot actually commit theft, because the officer permits the items to be "stolen."  Nevertheless, the offender has attempted to commit a theft and has performed all the requisite acts, and so deserves more serious punishment than someone who had merely made preparations to take the items but had not taken them.  In such a scenario, if the police officer encourages or persuades the offender to commit a particular offense, making it more likely that he will commit the offense, then this should mitigate the offender’s liability.

Relation to other laws.  Although the conceptual basis of this Section draws largely from prior Maldivian law, comparison is difficult because of the difference in structure between the prior Maldivian provisions and this Code.  For example, prior provisions of Maldivian law often incorporate multiple offenses while this Code divides similar offenses into separate categories.

In Islamic law, attempt, solicitation, and conspiracy are prescribed a lesser punishment than the intended offense since such crimes are both less dangerous and less reprehensible than the completed offense.[64]  In the same way that Islamic law, as al-Mawardi notes, punishes attempt under ta’zir, including for conduct that would normally be punished as a hadd offense, Section 86 stipulates a lesser punishment for attempt than for the completed crime.[65]  

The above analysis applies to liability for all other inchoate offenses defined in this Chapter.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 93 

Comment:

Generally.  Section 87 establishes a separate offense for the possession of instruments of crime.  Subsection (a) defines the offense to prohibit possessing an instrument of crime with the purpose to use it criminally.  Subsection (b) defines the term “instrument of crime.” Subsection (c) grades the offense.  

This offense is included in Chapter 80 because it relies on an underlying offense—the person must have the purpose to employ the instrument of crime in committing an offense—and, like attempt, solicitation, and conspiracy, a person is still liable for possession of instruments of crime if the underlying offense is not completed.  The offense does not seek to prohibit possession itself as much as it seeks to prohibit the harmfulness and dangerousness of another offense indicated by the possession of instruments to be used in such an offense.

Relation to other laws.  This Section provides a general offense of possessing instruments of crime which encompasses the more specific set of circumstances detailed by Provision 93 of the prior Penal Code (1966).  

In addition, Islamic law endorses preventive detention of a theft suspect arrested in possession of an “instrument of crime.”[66]  Section 87 clarifies that the prohibition extends to anything specially made or specially adapted for criminal use or anything commonly used for a criminal purpose and possessed under circumstances strongly corroborative of the defendant’s criminal purpose.  Islamic law also recognizes that possession of an instrument of crime should be punished because it is indicative of the harmfulness and dangerousness of another offense.[67]  

Comment:

Generally.  This Section collects defined terms used in Chapter 80 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between the terms defined in Chapter 80 and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

 The purpose of Chapter 90 is to provide a coherent framework for the grading and sentencing of offenses.  In general, the grading of offenses under this Code, as well as the related matters dealt with in this Chapter, have their basis in the assumptions underlying the functioning of a modern penal code.  This Chapter is not intended to address all issues regarding the sentencing of offenders or grading of offenses; some provisions will be addressed in the sentencing guidelines in Part III and in the specific offenses themselves.  For example, Chapter 90 lays out the grading of offenses and the maximum punishments that can be handed down for each offense, but does not address whether incarceration shall be served under house arrest or in a prison.  Such decisions are addressed in the sentencing guidelines in Part III of the Code.  Moreover, judges will retain some discretion in determining the length and type of sentences given.  In addition, the maximum sentences identified in Chapter 90 will need to be revised by the Maldivian government as appropriate over time.  The purpose of this Chapter is to establish punishment grades so that punishments are consistent within and across offenses.  

 Another point to mention is that this Chapter was written in concurrence with the sentencing guidelines in Part III of this Code, which does not permit early release of prisoners nor adopt any system of paroles.  Therefore, the terms of imprisonment described in this Chapter represent actual times of imprisonment rather than terms that may eventually be shortened by early release or parole.

 Finally, some punishments that are available in Islamic law are not included in this grading system, for instance, amputation (for theft).   These punishments are not included because they do not exist in prior Maldivian law, therefore do not reflect prevailing Maldivian norms, and these punishments would not be consistent with the Maldives’ international legal obligations.[68]  Furthermore, the majority of Muslim nations have not adopted this punishment.  The Dar al-Ifta al-Missriyyah, the primary body for issuing Islamic legal opinions in Egypt, notes that halting execution of punishments like amputation is acceptable given the “extreme difficulty of meeting the necessary conditions” for application.[69] 

 The punishment of lashes has been removed from the general grading scheme based on prior Maldivian practice.  However, lashes are specifically authorized within the Special Part of this Code for the crimes of Unlawful Sexual Intercourse (Section 411), False Accusation of Unlawful Sexual Intercourse (Section 612), Consumption of Alcohol (Section 616), and Incest (Section 413).  The corresponding Section for each of these crimes authorizes a specific number of lashes as an additional punishment for the offense.  Note that Section 411(d) defines “lashes” as a means of symbolic punishment of striking an offender’s back with a short length of rope in a manner not designed to cause bodily injury.  The definition further provides that a single person must inflict all of the lashes prescribed as punishment, and he may only drive the rope using his wrists; he may not use any other part of his arm or movement in his shoulders, hips, back, legs or torso for that purpose.  This definition is supported by Muslim jurists (see relevant Sections in Commentary) and ensures that the punishment is within the bounds of common notions of decency.  It should be noted however that under Islamic law if the punishment of lashes is administered for the above mentioned offenses then additional punishment of jail time would not be appropriate.  As a result, in this Code the administering of lashes should serve to mitigate other punishment for the same offense.

Corresponding Provision(s):  None

Comment: 

Generally.  This Section provides a classification of all criminal offenses into grades for purposes of determining the extent of liability.

 Criminal offenses are further classified into felonies and misdemeanors.  Such a distinction is important “for purposes either (1) of the substantive criminal law, or (2) of criminal procedure, or (3) of legal matters entirely outside the field of criminal law.”[70]  

 First, within the substantive criminal law, as represented by this Code, some offenses are defined in terms of felonies and misdemeanors.  For example, Section 141 (Criminal Coercion) punishes the compulsion of another to commit a felony more greatly than the compulsion of a misdemeanor.  

 Second, rules of criminal procedure and sentencing may depend on a classification of felony or misdemeanor.  Rules of arrest, jurisdiction, indictment, and testimony impeachment may turn on this distinction.[71]  Furthermore, the distinction may change the magnitude of the sentence.  For example, within Section 95 (General Adjustments to Offense Grade), “commit[ing] a felony in an exceptionally brutal or heinous manner” may subject the offender to a penalty one and one half times the maximum otherwise authorized.  

 Third, the distinction may be relevant, or may become relevant, outside of the criminal sphere.  For example, a felony conviction may prevent individuals from the rights to hold public office, to vote, or to work as an attorney.[72]

 Relation to other laws.  The prior Penal Code (1966) is ungraded; each offense contains a unique penalty.  There are two major, related problems with such a system: inconsistency and difficulty adding new offenses.  Inconsistency arises from the difficulty in assessing a single penalty relative to the entire penal code.  Without examining each and every provision, it is impossible to know whether a given penalty is proportionately “correct” relative to another penalty.  Likewise, without a grading system, one would need to examine the entire penal code before determining the appropriate penalty for a newly enacted offense. Giving each offense a grade systematically “expresses a judgment of degree.”[73]  Thus, limiting the possible penalties to a system of five felonies, three misdemeanors, and violations greatly simplifies the Code.  Simplification yields greater consistency and proportionality, but this comes at the loss of some flexibility.  In such a classification scheme, all offenses must group into a total of nine categories.  Such a loss in flexibility, however, is greatly offset by the gains.  

Corresponding Provision(s):  None

Comment: 

 Generally.  This provision provides classifications for offenses not included in the Code.  While all offenses should be classified (i.e. assigned a felony or misdemeanor grade), the possibility remains of an unclassified (ungraded) offense.

 In the case of an unclassified offense that provides a specified term of imprisonment, Section 91(a) provides that the offense may be classified according to that term.  If the offense generally declares itself to be a felony or misdemeanor, Section 91(b) provides a default classification.  

If the offense provides no guidance as to its penalty, or is an offense of strict liability, Section 91(c) provides that it is to be treated as a violation.  The only exception to this is that strict liability offenses can be subject to a grade higher than violation if the prosecution proves negligence as to all elements.  Such a system ensures that a disproportionately long sentence is not created where unintended.  

  Relation to other laws.  Prior Maldivian law provides an individual penalty, not classification, for each offense (see the commentary on Section 90 regarding the general benefits of classification).  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 16 and 60.   

Comment: 

 Generally.  This Section establishes the maximum terms of imprisonment for each class of offenses.  The durations generally double, except at the ends.  A proportionately smaller penalty is thought to be applicable to the least severe offenses for which imprisonment is appropriate (30 days for a Class 3 misdemeanor).  Likewise, the maximum penalty is capped at 25 years for the most severe offenses.  Imprisonment is authorized for offenses classified as violations.  

 Section 92(j) emphasizes that the terms of imprisonment set by this Section are statutory maximums; that is, sentences of lesser terms of imprisonment may be given consistent with an offense’s grade.  For example, a Class 3 felony may be punished with a term of imprisonment of 6 years, which is within the range of punishments permitted for that grade.  Under Section 92(j), only the most egregious imaginable forms of Class 3 offenses should receive an 8 year term of imprisonment.  However, a Class 3 felony should not be punished by a term of less than 4 years since that would defeat the legislative purpose of grading the offense a Class 3 felony rather than a Class 4 felony.

 Section 92(k) further emphasizes that the most severe form of punishment possible, the death penalty, may only be given for the most heinous form of purposeful killing; in other words, the most heinous crime.  This reflects the seriousness and severity of the death penalty as a form of punishment.  Section 1204 contains additional limitations on the imposition of the death penalty under the sentencing guidelines.  Both this Section and Section 1204 should be read as a limitation to Section 1205.  Although the death penalty is part of the Code, it is meant to be used only in exceptional circumstances.

 Relation to other laws.  Provision 16 of the prior Penal Code (1966) limits the maximum imposable term of imprisonment to 25 years; that limit is carried forward into this Code.  Provision 60 of the prior Penal Code (1966) sets the minimum penalty of nuisance at 10 days.  However, for the purpose of encompassing a full range of Class 3 Misdemeanors, Section 92(h) sets the maximum penalty at 30 days.  This is, of course, a maximum penalty; offenders can still be sentenced to fewer than 30 days where the judge determines that a lengthier sentence is not appropriate.   

 Although prior Maldivian law provides an individual penalty, not classification, for each offense, most prior penalties fit into the new grading structure.  Penalties for individual offenses typically cluster around the ranges of 6 months, 1 year, 2 years, etc.  Although there are some changes from the prior laws in the length of the maximum available sentence, the changes are generally not substantial.

 In addition, in contrast to the prior Penal Code (1966), specifically Provisions 28(q) and 41(b), this Code does not prescribe the form which imprisonment should take because it is beyond the scope of a penal code.  Rather, the form which imprisonment should take is more appropriate for the prison system.  For this reason, Section 92 of this Code authorizes imprisonment, but does not refer to what form this imprisonment shall take. 

 Finally, this Code addresses punishment in a different manner from the prior Penal Code (1966).  Whereas the prior Penal Code specifically defines the punishment for each offense, Sections 92, 93, and 94 of this Code provide the general parameters of what sort of punishment is authorized by this Code.   In addition this Code provides maximum penalties prescribed for each class of offenses rather than a specific penalty for each offense.  The rationale behind this scheme is to provide a more streamlined and consistent punishment scheme.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 26

Comment: 

 Generally.  This Section establishes the maximum fine for each class of offenses.   Section 93(c) doubles the maximum authorized fine for corporations since, in most cases, corporations have significantly greater financial resources than do individuals, and greater fines may be appropriate to achieve the goals of punishment when dealing with corporations.  Note that Section 220(6) assigns a higher aggravated fine for environmental damages, creating an exception to this Section.

Relation to other laws.  These penalties are much higher than those provided by the prior

Penal Code (1966).  The maximum penalty found in the prior Code is MVR 15,000.[74]

 The higher penalties in this Code, however, reflect the “or” language of the prior Code.  Previously, most offenses could be punished by imprisonment or a fine.  Setting the penalties sufficiently high makes fines a viable alternative to imprisonment: it gives the penalty weight.  In addition, the fines are the maximum allowed; they can always be set lower as a judge deems appropriate.

Corresponding Provision(s):  None

Comment:

 Generally.  Section 94 delineates the situations in which a defendant can and cannot be convicted of more than one offense.  In general, the limitation is designed to prohibit an offender from serving multiple sentences for the same crime.  Thus, multiple convictions are generally limited to those situations in which there are genuinely two separate crimes, whether arising out of the same act or arising out of separate acts.  

Section 94(a) permits conviction for multiple offenses where the offenses are based on the same conduct and this conduct establishes the commission of more than one offense.  

Pursuant to Section 94(b)(1)(A)(aa), where the offenses are based on the same harm and one offense is entirely included in the other offense, conviction for both crimes is not permitted.  For example, where a defendant is convicted of sexual assault, he cannot also be convicted of assault if the only bodily harm is that of the sexual penetration.  This Section does not, however, preclude two prosecutions where a defendant beats a victim and then separately, though in the same course of events, sexually assaults the victim.   

Section 94(b)(1)(A)(bb) prohibits conviction of two offenses where one offense arises out of the same act and is graded as a lesser offense and the lesser offense is considered part of the greater offense.  For example, a defendant could not be prosecuted for assault and murder where the same act resulted in the death of the victim.

Section 94(b)(1)(C) prevents conviction of multiple offenses where each offense is defined as a continuous course of conduct and the offender is accused based on the same uninterrupted conduct.

Section 94(b)(2) prevents conviction of an inchoate crime where the defendant is also prosecuted for a completed crime arising out of the same act.  Under these provisions, for example, a defendant cannot be convicted of assault and attempted assault where both crimes are based on the same act.

Section 94(b)(5) prevents conviction of multiple offenses in cases where the facts required to establish one offense are inconsistent with the facts necessary to establish the other offense.

Relation to other laws.  Prior Maldivian law is silent on this matter.  However, there is a strong public policy argument for delineating the situations in which a defendant can and cannot be convicted of more than one offense.  Limiting such situations is desirable because the integrity of the criminal justice system would be jeopardized if an offender were to serve multiple sentences for the same crime.  Thus, multiple convictions are generally limited to those situations in which there are genuinely two separate crimes, whether arising out of the same act or arising out of separate acts. 

Sections 110, 111, and 112 reach all homicides, except non-negligent homicides.  The harms caused by homicide require no explanation.  Offense grades vary with culpability, and range from a Class 1 felony (for knowing or reckless Murder) to a Class 4 felony (for Negligent Homicide).  The reason for different degrees of culpability for the offense of homicide is to reflect moral distinctions among different types of offenders.  Section 113, in accordance with prior Maldivian law, punishes causing, aiding, and attempting suicide, but does not punish the heirs or family members of a person who successfully commits suicide.  Section 114 punishes concealing a homicide, because such conduct interferes significantly with law enforcement’s efforts to investigate and prosecute homicides.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(d)

Comment: 

 Generally.  Section 110 punishes three kinds of homicide as Murder.  Subsection (a) punishes homicides committed knowingly.  Subsection (b) punishes homicides committed recklessly “under circumstances manifesting an extreme indifference to the value of human life.”  Subsection (c) punishes homicides resulting from “the commission, attempt to commit, or flight after commission of any violent offense,” unless the defendant successfully rebuts the presumption of recklessness and extreme indifference.  Murder is graded as a Class 1 felony.

Homicides falling under Subsection (b) should represent a wanton and willful disregard of the likelihood that the natural tendency of the defendant’s behavior is to cause death or great bodily harm.  Examples of such behavior include intentionally shooting a gun into a crowded room, or driving a car at a very high speed in inclement weather while highly intoxicated.

Liability under Subsection (c) is similar, because homicide resulting from “the commission, attempt to commit, or flight after commission of any violent offense” likely demonstrates the required recklessness and extreme indifference.  Liability under Subsection (c) is limited to cases involving violent offenses, because violent offenses are – viewed ex ante – the most likely to cause death.  Subsection (c)’s rebuttable presumption would be unfair if applied to cases of nonviolent offenses where the risk of causing death is much lower.  The paradigm case of murder under Subsection (c) is similar to the one described above with respect to Subsection (b), except that under Subsection (c), homicide related to the commission of a violent offense triggers a presumption of recklessness and extreme indifference, which the defendant has a right to rebut by a preponderance of the evidence.  For example, a thief fleeing an armed bank robbery in a car might be guilty of murder if he accidentally strikes a pedestrian, killing him.  However, the bank robber would be allowed to try to rebut the presumptions of recklessness and extreme indifference by showing that the armed robbery was not a violent offense (i.e., “an offense likely to cause bodily injury”), because the gun he used to threaten the bank teller was unloaded.  Relation to other laws.  Maldivian law does not define liability for murder.  Provision 88(a) of the prior Penal Code (1966) makes it an offense “to disobey an order lawfully issued under judicial or legal authority;” Provision 88(d) adds the following: “[w]here such disobedience result[s] in the death of a person, the offender shall be subjected to punishment prescribed by Islamic Law.”[75]  Thus, prior Maldivian law incorporates Islamic law by reference.  However, it restricts Islamic law by providing for the death penalty only in the case of a homicide which results from an act of terrorism.[76]  

Liability for Murder under Subsection (a) corresponds roughly with liability under Islamic law for intentional homicide (qatl al-‘amd).[77]  Ibn Duyan defines intentional homicide (qatl al-‘amd) as intentionally causing the death of another.[78]  Mohamed El-Awa defines intentional homicide (qatl al-‘amd) as homicide where the person “intend[s] to kill and employ[s] some means likely to have that result.”[79]  Al-Shafi’i divided intentional homicide into two parts: purely intentional (qatl al-‘amd) and quasi-intentional (qatl shibh al-‘amd) homicide.[80]  Substantively, there is no difference between knowledge and intent in relation to homicide, because the common law notion of intent includes both knowledge and purpose, as defined in the Code.

Liability for Murder under Subsections (b) and (c) corresponds roughly with liability for quasi-intentional (qatl shibh al-‘amd) homicide.  As stated above, many Muslim jurists, including Shafi’i define quasi-intentional (qatl shibh al-‘amd) homicide as unintentionally causing the death of another using means capable of causing a serious injury but not necessarily death.  This is consistent with the language of Subsection (b), which defines reckless homicide as occurring “under circumstances manifesting an extreme indifference to the value of human life.”  This language refers to homicide that results from conduct that is very likely or practically certain to cause serious bodily injury to the victim, but which the defendant is not certain will kill the victim.  

The Shafi’i school of thought punishes purely intentional (qatl al-‘amd) and quasiintentional homicides (qatl shibh al-‘amd) differently.  In cases of purely intentional (qatl al‘amd) homicide, the victim’s heirs choose between retaliation (qisas) and compensation (diya);[81] in cases of quasi-intentional (qatl shibh al-‘amd) homicide, the victim’s heirs receive enhanced compensation (diya) only.[82]  However, consistent with modern penal practice, this Code’s Section 110(d) grades Murder as a Class 1 felony.  This Section transfers the right to punish persons who commit homicide from the victim's family to the State, consistent with modern practice, including that of many Muslim countries.  Both compensation (diya) and penance have been moved from the criminal system to the civil system for greater efficiency.    

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(d)

Comment: 

Generally.  Section 111(a) punishes recklessly causing the death of another person.  This Section is different from Section 110(b), which punishes reckless homicide “under circumstances manifesting an extreme indifference to the value of human life.”  Unlike Section 110(b), Section 111(a) punishes reckless homicide in the absence of extreme indifference.

 Recklessness sufficient to establish liability under Subsection (a) exists where a person (1) wounds another person in a vital area, such as the head, (2) drives at an excessively high speed, (3) uses fire without proper precautions, or (4) otherwise acts so as to place a person in clear danger of death.  The prosecution bears the burden of establishing the defendant’s awareness of the risk of the other person’s death and the magnitude of such risk.

Subsection (b) mitigates homicide that otherwise would be punishable under Section 110 when a defendant can prove by a preponderance of the evidence that he committed a homicide under the influence of extreme mental or emotional disturbance, for which there is a reasonable explanation.  “Extreme mental or emotional disturbance” cannot be defined with precision.  Such mental or emotional disturbance must rise above the level of everyday stress and aggravation; it must prevent mature and meaningful reflection by a mind capable of comprehending the gravity of the act.  The aid of a qualified mental health professional may be necessary to properly evaluate claims under Subsection (b).  

Subsection (b) also adds that “the reasonableness of [a person’s explanation] is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believes them to be.”  This allows for a closer relation between criminal liability and moral guilt, something advocated by both Islamic law and this Code, and therefore requires that the judge consider a defendant’s situation and perspective when determining liability for Manslaughter under Subsection (b).

Provocations constituting “reasonable explanations” under Subsection (b) may sometimes include, but are not limited to, observation by a person of his spouse committing adultery, aggravated assault or battery, mutual combat, commission of a serious crime against a close relative of the defendant, and illegal arrest.  When a defendant asserts an unfamiliar “reasonable explanation,” the judge should attempt to analogize the asserted explanation to one of these recognized explanations.  Note also that Subsection (b) may apply without any provocation at all; a person’s “extreme mental or emotional disturbance” may arise without apparent provocation.  For example, a man might kill his own brother under the influence of an extreme mental or emotional disturbance caused by a combination of factors, including child custody problems, the inability to maintain a recently purchased home, and an overwhelming fear of his brother.  A person’s “extreme mental or emotional disturbance” may also arise without actual involvement by the decedent.  For example, after being provoked, the defendant might strike out in a blinding rage and kill an innocent bystander.  The guiding question should be whether the defendant’s asserted mental or emotional disturbance makes it sufficiently difficult for him to control his actions. 

 For discussion of the defendant’s burden of proof by a preponderance of the evidence, refer to the commentary for Section 15(b)(3).

 Under Section 111, Manslaughter is graded as a Class 2 felony.  Manslaughter is graded lower than Murder because of the difference between the culpability required for liability under Sections 110 and 111.  Under Section 110, liability exists when a person causes the death of another person knowingly, or recklessly with extreme indifference; under Section 111, liability exists where a person causes the death of another person recklessly, or with a higher level of culpability that is mitigated by the influence of his “extreme mental or emotional disturbance for which there is reasonable explanation.”  For a closer examination of these culpability levels, see Section 24 (Culpability Requirements) and its commentary.

 Relation to other laws.  Prior Maldivian law does not define liability for manslaughter.  Provision 88(a) of the prior Penal Code (1966) makes it an offense” to disobey an order lawfully issued under judicial or legal authority;” Provision 88(d) adds the following: “[w]here such disobedience result[s] in the death of a person, the offender shall be subjected to punishment prescribed by Islamic Law.”[83]  Thus, prior Maldivian law incorporates Islamic law by reference.    Most Muslim jurists would classify Manslaughter under Subsection (a) as quasiintentional homicide (qatl shibh al-‘amd).  Muslim jurists define quasi-intentional homicide as unintentionally causing the death of another using means not likely to kill.[84]  Cases of quasiintentional homicide (qatl shibh al-‘amd) covered by Section 111(a) differ from cases covered by Section 110(b) in that homicide under Section 110(b) must occur “under circumstances manifesting an extreme indifference to the value of human life.”  Thus, ordinary recklessness suffices to establish liability under Section 111(a).  The paradigm case of homicide under both Islamic law and Section 111(a) is one where a person is aware of a substantial risk that his conduct will harm and perhaps cause the death of another person.  

 Prior Maldivian law does not expressly mitigate liability for Murder (as defined in Section 110) committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation.  However, Section 111(b) is consistent with Islamic law, which allows mitigation of liability for murder.  Ibn Duyan illustrates this by citing instances where the Caliphs ‘Ali and ‘Umar both mitigated liability for murder in cases where a husband found his wife sexually engaged with another man and killed him in that moment.[85]

The mitigation provided by Subsection (b) is desirable because a mentally or emotionally disturbed person is similar to an incompetent person who is excused under Islamic law and this Code.[86]  Both Islamic law and this Code excuse incompetent persons, because they lack the moral guilt that both laws seek to punish.  To a lesser extent, the same is true of persons who commit homicide and satisfy the requirements of Subsection (b). 

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(d)

Comment: 

Generally.  Section 112 defines the offense of negligent homicide.  Although criminal law generally considers recklessness the minimum culpability level for which liability is appropriate, Section 112 departs from that understanding recognizing that the harm involved — the death of a human being — is much graver than that punished by other offenses.  Section 112 imposes liability on those who fail to recognize a “substantial and unjustifiable risk” of causing death and whose acts, constituting a “gross deviation” from the reasonable person’s standard of care, result in the death of another person.  In other words, the offender is not aware of the substantial risk that he has created, but should have been aware of it.  This differs from Section 111 (Manslaughter) and is graded lower because the recklessness required for Manslaughter means the offender knew of but consciously disregarded the substantial risk; in the case of Negligent Homicide, the offender was not in fact aware of the risk, though his negligence in failing to recognize it is still blameworthy.  For a closer examination of these culpability levels, see Section 24 (Culpability Requirements) and its commentary.

The offender’s negligence, however, must rise to the level of criminal negligence; ordinary tort negligence does not suffice.  For example, if a person fires a gun, unreasonably believing it to be unloaded, and kills another, he may be convicted under Section 112.  Another common example of negligent homicide is careless driving which causes a death.  Other examples include permitting overcrowded conditions in a place of entertainment, delivery of dangerous drugs, and conducting dangerous blasting operations.

 Relation to other laws.  Prior Maldivian law does not define liability for negligent homicide.  Provision 88(a) of the prior Penal Code (1966) makes it an offense “to disobey an order lawfully issued under judicial or legal authority;” Provision 88(d) adds the following: “[w]here such disobedience result[s] in the death of a person, the offender shall be subjected to punishment prescribed by Islamic Law.”[87]  Thus, prior Maldivian law incorporates Islamic law by reference.  

Muslim jurists do not specifically use the term “negligent homicide” but allude to it in many places.  Islamic law “holds a person responsible for the result whenever it is possible to trace its source back to the act which leads to it.”138  Ibn Rushd cites the example of when the Caliph ‘Umar imposed liability where “a person was leading his mare and it trampled upon another.”139  Ibn Duyan comes closest to Section 112’s definition of negligent homicide; he labels as “mistaken (khata’) homicide” all cases satisfying the following criteria:  “[the defendant] does what is permissible to him to do, (his act) of hitting or aiming at game, or similar to it . . . then killing a person.”140  Section 112’s definition of negligent homicide accords with Ibn Duyan’s notion of mistaken homicide, except that the Code, unlike Ibn Duyan, would require monetary compensation (diya) for non-negligent homicide to be sought in the civil system as opposed to the criminal system.  Similarly, other jurists have cited the fact that someone who negligently leaves an item in the middle of the street “so that it injured another person” is “liable for the injury because the injury occurred as a result of his intentional placing” of the item.141    

According to both Islamic law and Section 112, the negligence required for liability is lacking in two cases.  The first case involves a person who acts so as to create a “substantial and unjustifiable” risk of causing death, but is not culpable with regard to his ignorance of such risk, because his ignorance does not constitute a “gross deviation” from the acceptable standards of conduct for a person in the same situation.  The second case involves a person who acts so as to create a “substantial and unjustifiable” risk of causing death, but is not culpable with regard to his creation of such risk, because his ignorance results from a reasonable mistake of fact.142  The example given by Ibn Duyan in this regard is that of a hunter who shoots at what he reasonably believes is a deer, but which in fact is a person dressed as a deer.  

Sections 112 departs from Islamic law by not providing for compensation or penance as criminal punishment options, placing them in the civil system; punishment is by incarceration or fine only.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(31) and 88(32)

Comment: 

Generally.  Section 113 adopts the premise that suicide is undesirable and should not be facilitated or attempted.  Penal law does not punish the individual who successfully commits suicide, because authorizing such punishment would be futile. 

statute.  This Chapter makes such specific homicide offenses unnecessary by supplying language that punishes all homicides involving at least negligence.

138  Ahmed Fathi Bahnassi, “Criminal Responsibility in Islamic Law,” 174.

139  Ibn Rushd, The Distinguished Jurist’s Primer (Bidayat al-mujtahid), volume 2, at 503.

140  Ibn Duyan, Crime and Punishment Under Hanbali Law (Manar al-Sabil), 10 (quoting al-Qamus al-Muhit, vol. 4, at 122 (Cairo 1938)).    

141  Ahmed Fathi Bahnassi, “Criminal Responsibility in Islamic Law,” 175.

142  Note the gap between these two cases.  The second case – reasonable mistake of fact – also fits the description of the first case, but the first case – lack of a gross deviation from acceptable standards of conduct – does not necessarily involve a reasonable mistake of fact.

 Section 113(a) punishes a person who causes another to commit suicide by force, threat of force, or deception.[88]  Cases involving force, threat of force, and deception merit punishment, to the exclusion of all other cases, because they are cases in which the decedent could not have given valid consent.[89]  Notwithstanding the decedent’s presence as an intervening actor, the person’s conduct therefore closely resembles direct homicide.  Subsection (a)’s knowledge requirement combines with the limitation of liability to cases involving force, threat of force, and deception to exclude from liability all but the most culpable and dangerous conduct.  A person is not liable under Subsection (a) unless he uses force, threat of force, or deception; even if he uses such means, he will not be liable unless he is practically certain that his conduct will cause the other person to commit suicide.  

 Section 113(b)(1)(A) punishes knowingly aiding or soliciting another to commit suicide.  Liability here depends solely on the defendant’s conduct and state of mind; the intentions of the decedent are irrelevant.  For example, a person is liable under Subsection (b)(1)(A) if he mixes poison and leaves it where he is practically certain the decedent will find and ingest it (and where the decedent does so).  Subsection (b)(1)(A) also includes cases where multiple people decide to commit suicide together as part of a suicide pact and where one of the pact members survives.  For example, suppose persons A and B wish to commit suicide together by driving off a cliff.  They drive off the cliff, but person A, the driver survives.  Person A has committed a Class 5 felony under Subsection (b)(1)(A) for knowingly aiding (and in fact causing) person B’s suicide and would also be guilty of attempting suicide.[90]

 Subsection (b)(1)(B) allows punishment for attempted suicide, but it is especially important in such a case to consider carefully the mental health of the person making such an attempt for any sign that he may not be responsible for his actions.  Liability for attempt is imposed when a person, acting with the culpability required for the underlying offense, purposely engages in conduct constituting a substantial step toward the commission of the offense.  The grading for (b)(1)(B) is a Class 1 misdemeanor under Subsection (d)(3). 

Subsection (b)(2) exempts licensed health-care professionals from liability in two instances.  First, under Subsection (b)(2)(A), a licensed health-care professional may withhold a life-sustaining procedure in compliance with the wishes of the patient or the patient’s immediate family.  This provision strikes a balance between the patient’s expressed wish to end his own life, and the State’s interest in discouraging people from aiding or soliciting suicide.  Subsection (b)(2)(A) includes language allowing a patient’s immediate family to consent to assisted suicide, because cases arise where the patient is either unconscious or otherwise incapable of giving valid consent.  The definition of a patient’s “immediate family” shall be governed by Maldivian law.  The State may wish to prescribe procedures that licensed health-care professionals, patients, and patients’ families must follow in cases under this Subsection.  

Subsection (b)(2)(B) provides that a licensed health-care professional may administer, prescribe, or dispense medication or undertake or approve procedures to relieve another person’s pain or discomfort, even if doing so may hasten or increase the risk of death.  Like Subsection (b)(2)(A), this provision strikes a balance between a patient’s expressed consent and the State’s interest in discouraging people from aiding or soliciting suicide.  Consent in cases under Subsection (b)(2)(B) must be valid under Section 27, and must satisfy all other requirements imposed by law.

In Subsection (b)(3)(A), the definition of “overdose” shall be intentional use of a drug or medicine in an amount that is higher than is normally used.  Normal usage shall be defined on the basis of specifications on the product label or general industry standards.  The term “controlled drug” is a drug that is listed on the Maldives classified drug list. .The presumption of attempted suicide probably would be rebutted where a person with Alzheimer’s disease forgets his medication schedule and accidentally overdoses or a drug user is tricked into injecting himself with heroin.  

 The definition of “suicide” in Subsection (c) is designed to exclude merely reckless conduct and conduct that does not constitute a substantial step towards causing one’s own death.  Thus, a tight-rope walker who dies on the job does not commit suicide, so long as he is less than practically certain that his conduct will cause his own death and is only recklessly indifferent regarding the possibility of death.  Also, a soldier does not commit suicide if he knowingly exposes himself to enemy fire, because, strictly speaking, he has not caused his own death.  

 Section 113 grades the offenses in Subsections (a) and (b) in accordance with the culpability and dangerousness of the conduct involved.  Thus, Subsection (d)(1) potentially grades an offense under Subsection (a) as a Class 2 felony (where the defendant’s conduct would have been murder if it had caused the decedent’s death directly).  Subsection (d)(2) grades the offense in Subsection (b) one grade higher than Subsection (d)(3), in recognition of the greater harm that results when the defendant’s conduct causes an actual or attempted suicide.

Relation to other laws.  Prior Maldivian law does not fully address the conduct proscribed by Subsections (a) and (b), nor does it define “suicide.”  The prior Penal Code (1966) contains Provision 88(32) which prohibits harming oneself.  This Code is faithful to Provision 88(32) to the extent that it prohibits causing serious bodily injury to oneself.  However, it departs from prior law by not prohibiting the causing of less serious harm to oneself because Subsection (a) of this Code is constructed to serve criminal law’s goal of only punishing culpable and dangerous conduct.  Causing less serious harm to oneself is not considered to be culpable and dangerous conduct.

Prior Maldivian law does not require ignominious burial of the decedent or forfeiture of the decedent’s assets to the government.  This Code adopts the same position.

This Chapter is consistent with Islamic legal doctrine.  Subsection (b) has been added because, like Islamic law, it balances the interests of individuals and the government.  Islamic law discourages suicide, but generally punishes only attempted suicide (as a ta’zir offense).[91]  Most jurists cite the following Qur’anic verse to justify punishing suicide: “Do not kill yourselves.”[92]  

The jurists’ opinions concur with the rationales for imposing liability under Subsections (a) and (b).[93]  Imam an-Nawawi supports this position by stating: “An adult whose intelligence is sufficiently developed to allow of his managing his property may legally ask someone to give him a wound.  In such a case there is no crime on the part of the person who gives the wound.[94]  Furthermore, contemporary Islamic jurists, like Yusuf Qaradawi, have issued legal opinions stating that although it is not permissible to actively assist in helping someone die, it is permissible to withhold life-sustaining treatment, based on the wishes of the family or patient, since administration of this treatment is not obligatory under Islamic law.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 70, 71, 76(a) and 83

Comment: 

 Generally.  Section 114 criminalizes concealing the death of a person known to have been killed by another person.  Such conduct harms society by interfering with government efforts to investigate, prosecute, and thereby deter homicides.  Furthermore, such conduct is clearly blameworthy. 

 Subsection (a)’s expansive language is designed to punish those who conceal their knowledge of any death caused by a person, whether the result of homicide or suicide.  This language also applies to a person who knowingly interferes in a police investigation of a homicide or suicide.  

It is possible that a generalized obstruction of justice offense would be more useful than Section 114, so long as its grading depended on the seriousness of the obstructed crime.  Please refer to Section 530 and corresponding commentary for further discussion.

 Relation to other laws.  Section 114’s scope relates directly to Provisions 71 and 72 of the prior Penal Code (1966).  However, Section 114 of this Code is narrower in scope because Provisions 71 and 72 of the prior Code punish concealing of any crime that would be considered a capital offense or receive life imprisonment as a punishment.  Further, Provision 76(a) of the prior Code also supports this Section because it reads:  “[w]hoever assists an offender who has committed an offence punishable with death shall be punished with exile or imprisonment between 2 years and 4 years or a fine not exceeding Mrf. 2,000.00.”  Section 114 of this Code is narrower than Provision 76(a) of the prior Code, because it punishes only knowing concealment of a person’s death.150  Section 114’s prohibition could be construed as an outgrowth of the prior Penal Code’s general obstruction of justice offense (Maldives Penal Code (1966), Provision 83).  

Islamic law would punish concealing a homicide as a ta’zir offense.  There seem to be no authorities in Islamic law that are contrary to this provision.  Ahmad b. Naqib al-Misri notes that: “It is a communal obligation (fard kifaya) to both witness legal events and to testify to having witnessed them.”[95] 

Section 114’s culpability requirement of knowledge does not conflict with Islamic law’s preference for “intent” as the culpability requirement for offenses against the person, because this Code equates “intent” with knowledge.  

Comment: 

Generally.  This Section collects defined terms used in Chapter 110 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 110’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

Section 120 punishes touching without consent or conduct that puts a person in fear of imminent bodily injury.  Even if no bodily injury results, touching without consent is punished because it is anti-social and violates a person’s right to bodily integrity.  While conduct that puts a person in fear of imminent bodily injury does not affect that person’s bodily integrity, it is still punished on the grounds that it is anti-social and causes psychological harm to the victim.  Like Section 120(a)(2), Sections 121 and 122 prohibit risky conduct and threats that are not only antisocial, but also dangerous and psychologically harmful.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 126, 127, 128, 129, 130 and 88

Comment:  

Generally.  This Section defines and grades the offense of assault.  The General Part provides that justifications, excuses, and nonexculpatory defenses that can be used as complete defenses to assault (See Sections 40-60 and corresponding commentaries).   

 Sections 120(a)(1) and (2) are alternative offense definitions.  Section 120(a)(1) defines the offense as any touching or injuring of another without consent.  A culpability requirement of recklessness is applied due to Section 24(h).  The “touching” requirement is satisfied any time the victim is touched by a thing or body part under the defendant’s control.  An extreme case would be a defendant who operates a wrecking ball and uses it to strike another person; the fact that the defendant was far removed from the actual contact is no obstacle to his liability.  It should also be noted that Section 120 imposes liability for all touching, no matter how slight.  Imposing liability for an un-consented tap on the shoulder may seem unjust, but the Code avoids injustice by grading such non-injurious touching as a Class 3 misdemeanor, the lowest possible grade.  It should be noted that this grade also encompasses touching of a more severe nature, such as forceful grabbing, that does not cause injury.  Section 120(a)(2) defines the offense as putting another person in fear of imminent bodily injury.  For the purpose of this Chapter, “imminent” should be defined as “about to occur.”  For instance, if a person is in a locked room with another and shouts “I am going to kill you,” there is reason to fear imminent bodily injury.  However, if the person yells the same thing to another person while being restrained by the police, the imminence requirement has not been satisfied.  Thus, the prosecution must establish that a reasonable person in the victim’s position would have thought that the defendant was about to harm him or her.  

 Section 120(b)(1) through (b)(3) separate the offense into three offense grades, ranging from a Class 4 (see aggravating factors for a bump up to class 2) felony to a Class 3 misdemeanor.  The definition of “bodily injury” is as defined in Section 17; “dangerous weapon” as defined in Section 120(d)(1); and, “serious bodily injury” as defined in Section 17.   

Section 120(c) outlines an aggravating factor, saying that the baseline sentence is increased one level if the victim is assaulted in a home where he is a resident or guest. 

The grading scale reflects several principles.  First, that causing bodily harm is more serious than simple assault, where there is no injury to the victim.  And second, that assaulting a victim in a home is more serious than assault committed in public.

Under Section 120(b)(1), a person commits serious assault, the gravest offense under this Chapter (without any aggravating circumstances), if he causes serious bodily injury to another person or commits the offense with a deadly weapon.  Note that Section 17 defines bodily injury as substantial physical pain, illness, or any impairment of physical condition and defines serious bodily injury as bodily injury that creates a substantial risk of death or causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.  Thus, Section 120(b)(1) encompasses more injuries and harms than Section 120(b)(2), and only serious injuries merit the higher grade associated with “serious bodily injury.”  For example, the loss of part of one’s earlobe constitutes bodily injury but not serious bodily injury.  Similarly, “impairment of physical condition,” a phrase used in the definition of “bodily injury,” includes the loss of motor functions, loss of a limb or other appendage, disfigurement, and mental disability.  “Permanent disfigurement,” as used in the definition of “serious bodily injury,” is limited to serious scarring and the loss of limbs but does not include minor scars or damage to appendages.

 Section 120(c) refers the decision maker to the sentencing guidelines in Part III of this Code.  The sentencing guidelines list factors which the decision maker may use to increase or decrease the length of the accused person’s sentence.  Section 120(c) also provides that if an offense under this Section occurs such that the victim is assaulted in a home where he is either a resident or guest, the baseline sentence is aggravated one level.  This aggravating factor appears here in the Code instead of in the sentencing guidelines because it does not apply to any offenses other than assault.  The sentencing factor in Subsection (c) is primarily aimed at deterring domestic violence.  Abuse of a spouse, lover, or a child is a particularly terrible offense, because the abuse is typically part of a long-standing pattern of action and because of the disruption caused to family life.  Many abusers will use the home as a sanctuary to protect themselves from legal consequences for their actions.  This Subsection clearly states that domestic violence should be taken seriously.  For this reason, those who commit assault within a residence where they are residents or guests should be punished more severely.

Section 120(d)(1)’s definition of “dangerous weapon” may be satisfied in one of three ways.  First, a dangerous weapon is anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for any lawful use it may have.  The phrase “readily capable of lethal use” should be understood as excluding all things not easily used as effective weapons.  A stick, for example, is not a dangerous weapon, but a sharpened stick is.  The phrase “manifestly appropriate for any lawful use it may have” is included to cover cases where a person needs to use something “readily capable of lethal use” in his work.  Second, a dangerous weapon is any implement for the infliction of serious bodily injury that serves no common lawful purpose.  This language is meant to cover things like brass knuckles, which are not “readily capable of lethal use,” but are certainly capable of inflicting serious bodily injury, and which serve no common lawful purpose.  Third, a dangerous weapon is any item that falls within the definition provided under Law No 17/2010 (Act prohibiting the use of threats, dangerous weapons and sharp objects).  It should be noted that assault with a dangerous weapon is graded higher than assault that causes bodily injury.

 Relation to other laws.  Section 120(a) omits as redundant prior Penal Code (1966) Provision 126’s stipulation that assault does not cover “unlawful assembly.”  Section 120(a)(1) omits prior Maldivian law’s requirement of acting in anger or animosity and focuses on the result of the defendant’s actions because such results are taken as evidence of anger or animosity.  This section also omits for the purpose of clarity prior Maldivian law’s differentiation between causing serious bodily harm to organs for which blood money is awarded in Islamic law and organs for which blood money is not awarded.  

Both prior Maldivian law and Islamic law punish conduct resulting in serious bodily injury more harshly than simple assault.  Thus, the value judgments of the prior Penal Code (1966) and Islamic law are adequately captured by higher grading for assault that results in serious bodily injury, obviating the need to differentiate between different bodily organs.[96]  For example, a person who assaults another with a knife and cuts off the other person’s arm should be punished to the same degree as a person who assaults another with a knife in such a manner that the other person must undergo surgery to repair his internal organs.  Both these cases would be graded as Serious Assault.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 101, 103, 104, 109, 111, 112, 113, 114, 115, 116, 117 and 118

Comment:

 Generally.  Section 121 defines and grades the offenses of endangerment.  Section 121(a) criminalizes recklessly creating a risk of bodily harm.  Section 121(b) creates a rebuttable presumption that “substantial risk to another of serious bodily injury or death” is created where a person violates laws and regulations pertaining to the enumerated items or activities, namely explosives or catastrophic agents; machinery, engines, or other mechanical devices; the demolition of any structure; the keeping or maintaining of animals; cutting and dropping down trees; and anchoring and bracing out to sea the vessels used at sea.  Section 121(d) grades the offense from a Class 4 felony to a Class 1 misdemeanor, depending on the seriousness of the risk created. 

Section 121(a) provides a general definition that encompasses the enumerated reckless endangerment provisions of the prior Penal Code (1966).  “Substantial risk of bodily injury or death” is defined by the kind of risk a reasonable person would take steps to avoid creating.  For example, if a person starts a fire but uses too much wood and fuel and fails to tend it such that the fire grows out of control and presents a danger to others, the person has created a substantial risk of bodily injury or death.  Conversely, had the person taken all the necessary precautions, used appropriate amounts of wood and fuel, and watched over the fire, he may not be liable under this Section even if people are harmed.

Section 121(d)(1) grades the offense as a Class 4 felony if it is committed under circumstances manifesting an extreme indifference to the value of human life.  “Extreme indifference” here has the same meaning as in Section 110(b).

            Relation to other laws.  Section 121(b)’s rebuttable presumption has the same effect as prior Maldivian law’s enumeration of specific cases of reckless endangerment, namely where a person violates laws and regulations (Maldives Penal Code (1966), Provisions 114-118).  Note that prior Maldivian law permits firecrackers and other dangerous chemicals as long as one obtains a government permit, but only the government can possess explosives (Law on Items That Are Prohibited to Be Brought to Maldives, 4(75)).  “Catastrophic agent” is defined in Section 121(c)(1) as a substance that can have disastrous effects if combined with another substance or altered in any way.  The “poisonous substances” mentioned in Provision 113 of the prior Penal Code (1966) are incorporated within this definition.  “Explosive” is defined in Section 121(c)(2).

 This Section also incorporates various examples of reckless endangerment present in prior Maldivian law.  Provision 101 of the prior Penal Code (1966) prohibits acting in a malignant manner that causes the spread of infections or any disease that endangers the public health of society.  Provisions 103 and 104 criminalize selling, giving or preparing food or drink that has been altered to or inherently does pose a danger to human life.  Provision 109 criminalizes recklessly operating a vehicle so as to endanger human life.  Provision 111 criminalizes negligently overloading a vessel in a manner that threatens human life.  Provision 112 criminalizes the possession or use of property in a manner endangering human life. 

 Imposition of penal liability for reckless endangerment is consistent with Islamic law's strong condemnation of homicide (See Chapter 110) and assault.  Conduct amounting to reckless endangerment creates conditions making homicide or assault likely to occur, and reckless homicide and assault are both punishable under Islamic law.[97]

Corresponding Provision(s):  None

Comment:

 Generally.  Section 122 criminalizes two distinct sorts of conduct.  First, it holds liable a person who threatens to commit any offense likely to cause bodily injury.  Note that the required culpability is recklessness under Section 24(h) (Culpability Required When None Stated).  Offenses likely to cause bodily injury include assault, sexual assault, and any other crime that may result in physical harm to the victim.  Second, Section 122 punishes a person who knowingly misinforms another of the imminence of a situation dangerous to human life, or of the commission of a violent offense.  Both kinds of conduct cause psychological harm to victims and may cause victims to engage in risky behavior to avoid the falsely reported danger.  

            Subsection (b) grades the offense as a Class 1 misdemeanor.

 Relation to other laws.  Maldivian law does not contain a specific offense for such actions.  However, it is consistent with prior law to criminalize threats in addition to reckless endangerment because the former often create the latter situation.  Muslim jurists cite the following Prophetic tradition as general support for criminalizing false threats: “Whoever frightens a believer, it is incumbent that God not protect him from the terrors of Judgment Day as a fitting recompense.”  Another hadith states that “it is not lawful for a Muslim that he frightens a Muslim.”[98]  Imam Najm al-Din al-Ghazzi further supports this by stating that it is unlawful to “frighten, annoy, or alarm.”[99]  

Comment:

Generally.  This Section collects defined terms used in Chapter 120 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 120’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

Chapter 130 punishes culpable sexual assault, sexual contact, indecent exposure, and sexual exploitation.  These offenses are graded higher than comparable assault offenses, because they cause greater harm to a person’s bodily integrity and psyche. 

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provision 173 Sub-provisions 12 and 13; Maldivian Law No. 9/91 on the Protection of the Rights of

Children § 25; and Maldives Penal Code (1966), Provisions 88(5), 88(6), 88(7) and 8/SP/2003

Comment:

Generally.  The offense defined by Subsection (a) prohibits a person from engaging in sexual intercourse with another person without the other person’s valid consent.  In a given case, valid consent may be lacking for one of two reasons.  First, the other person may be incapable of giving valid consent (See Section 27(c)(1-3) and Commentary).  Second, the defendant’s conduct itself may preclude the other person from giving valid consent.  Such is the case when the defendant induces consent through the use of force, threat of force or deception (See Section 27(c)(4) and Commentary).  

Subsection (b) creates an exception for individuals in a legal marriage.  The assumption here is that sexual intercourse in a marriage is always consensual.  However, the Subsection notes that the assumption can be rebutted to show that consent did not exist in a particular instance.  Providing an exception or rebuttable presumption reflects the view that sexual assault is unlikely to occur within the marital relationship.  In the case of the presumption, it is rebuttable so that if the victim can still prove that he or she was sexually assaulted by violent means or by other means, he or she can still press charges against his or her spouse.  This rebuttable presumption properly balances the state interests in the marital relationship against the concern with the illegal use of force or other coercion against any person. 

Subsection (c) defines “sexual intercourse.”     

Subsection (d) grades the offense defined in Subsection (a).  Under Subsection (d)(1)(A), a person commits Sexual Assault, a Class 2 felony and the most egregious offense in this Section, if the victim is a minor and the defendant is 4 or more years older than the victim, or if he uses force or threat of force to compel the victim to submit to intercourse.  

Under Subsection (d)(1)(B), the force or threat of force used by the defendant need not be directed at the victim personally; the defendant commits a Class 2 felony Sexual Assault even if he uses force or threatens force against a third person.  Note also, that unlike in the duress doctrine (Section 55), there is no requirement that the threat of force be imminent.    

In Subsection (d)(2)(C), which grades the offense as a Class 3 felony if the defendant holds a position of custodial authority in relation to the victim, particular attention should be paid to the word “custodial.”  Subsection (d)(2)(C) applies to prison guards, but not employers.  

The grading in Subsection (d)(2)(A) establishes the rule that assent or acquiescence to sexual intercourse by a minor is invalid.  This rule is a response to two realities.  First, minors experience greater pressure than adults to assent or acquiesce to sexual intercourse; second, minors lack the emotional maturity that ordinary adults rely upon to cope with this added pressure.  As a result, even in cases where consent seems clearly given, the validity of such consent is dubious at best.  Subsection (d)(2)(B) applies the same reasoning to those who are unable to understand the nature of the act or to consent to it, such as the mentally handicapped.

It should be noted that the victim of an offense under this Section shall not be held liable for unlawful sexual intercourse (zina) (Section 411), whereas the offender would be liable for this offense in addition to unlawful sexual intercourse.

Relation to other laws.  Section 130 replaces Provision 173 of Rules Relating to the Conduct of Judicial Proceedings’ “rape” provision[100] and its “fornication with a child who has not attained puberty” provision[101] and introduces a grading system to address different incarnations of the offense.

The section also complies with Law No. 9/91 – Law on the Protection of the Rights of Children, which states “No person shall commit an act that is detrimental to the integrity of children, nor shall any person commit an act of sexual abuse, exploitation or oppression against a child.”

Provision 173(5)’s assisted rape provision is not included because Chapter 30, governing accountability for the conduct of another, addresses this crime.  Incest and related offenses against the family are defined in Chapter 410. 

Both prior Maldivian law[102] and Islamic law[103] support Section 130(d)’s grading scheme.  Imam Malik b. Anas has stated that there is “no punishment for the woman who has been raped.”[104]  According to Ibn Qudama, “There is no sentence against a coerced woman according to the overwhelming majority of Muslim scholars. This is the view of Omar, al-Zuhri, Qatada, al-Thawri, al-Shafi’i, and others and we do not know anyone who departed from this view.”[105] 

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provision

173

Comment:

Generally.  Section 131 creates an offense similar to Section 131’s sexual assault offense, but prohibits improper sexual conduct other than “sexual intercourse” as defined in Section 131(c).  Subsection (b)’s definition of “sexual contact” is self-explanatory.  Language in 132(b)(2) covers situations where the defendant uses a third person as his innocent agent and causes that person to touch another person.  An “innocent agent” is a person who lacks the culpability required for an offense, but who is tricked or coerced by another person into committing a crime.  For example, if someone substitutes poison for medicine that is supposed to be given to a mother by her son and the son is ignorant of this substitution, the son is an innocent agent.  

The grading scheme in Subsection (c) bears some similarity to the grading scheme in Section 130.  Under Subsection (c)(1)(B) and (c)(1)(C), the force or threat of force used by the defendant need not be directed at the victim personally; the defendant commits a Class 4 felony even if he uses force or threatens force against a third person.  Note also, that unlike in the duress doctrine (Section 55), there is no requirement that the threat of force be imminent.

Relation to other laws.  Section 132, Criminal Sexual Contact, replaces Provision 173 of the Rules Relating to the Conduct of Judicial Proceedings (“Committing Sexual Misconduct by Force”)  This Section provides a more specific definition of sexual misconduct than Provision 173 and introduces a grading system to address different incarnations of the offense.  Incest and related offenses against the family are defined in Chapter 410.  This Section is also supported by Islamic law, which prohibits sexual contact outside of a “valid marriage or semblance of marriage,” with or without consent.[106]

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provision

173(9)

Comment:

Generally.  Section 132(a) imposes liability on any person who exposes himself to others under circumstances likely to cause affront or alarm, for the purposes of achieving sexual arousal or gratifying himself or another person.  

Subsection (a)(1)’s language – “expose his sex organ” – reaches any exposure, however slight, of a person’s genitals, buttocks or breasts.  However, language in Subsections (a)(2) and (a)(3) ensures that liability under this Section will not be overbroad.  A person may always argue that he lacked the purpose required in Subsection (a)(3).  Moreover, some instances of sexual organ exposure do not occur under circumstances likely to cause affront or alarm, as required by Subsection (a)(2).  For example, a fisherman bathing in the ocean, a woman breastfeeding or a naked child would all involve some form of nudity, but would not satisfy Subsection (a)(2)’s requirement.

Relation to other laws.  This Section parallels the Rules Relating to the Conduct of Judicial Proceedings, Provision 173(9).   

Corresponding Provision(s):  None

Comment:

 Generally.  This Section punishes a person’s culpable manipulation of another person’s actions for the purpose of producing sexual arousal or gratification.  This Section differs from Criminal Sexual Contact (Section 132) because no “sexual contact” takes place here.  The key word in Subsection (a)(1) is “causes.”  A person causes another person to act within the meaning of this Section if the other person’s act is an “involuntary act” under Section 51(a) – i.e., if the other person’s act is “not the product of his effort or determination” (See Section 51(a) and Commentary).  Note that another person’s act is per se involuntary if it is committed under duress within the meaning of Section 55 – i.e., if the other person is compelled to act “by a threat that a person of reasonable firmness in the person’s situation would have been unable to resist.”  The voluntariness of the victim’s act under this Subsection should be determined with regard for the attendant circumstances and the victim’s situation.

 It should be noted that Subsection (a) precludes liability in cases where the other person knows of the defendant’s purpose of producing sexual arousal or gratification, because such knowledge is the hallmark of consensual sexual relations within marriage.  In the marital context and given such knowledge, the defendant’s conduct causes no harm.

 Subsection (b)(2) grades the offense as a Class 2 misdemeanor.  Subsection (b)(1) raises the grade of the offense to a Class 1 misdemeanor if the victim is a person less than 18 years old or a legally incompetent person, because such individuals are especially vulnerable to the sexual exploitation punished by this offense.  A defendant who exploits such a vulnerable person inflicts more harm and is more blameworthy than he otherwise would be. 

Relation to other laws.  There is no parallel provision in prior Maldivian law.  However, this Section is a logical extension of Criminal Sexual Conduct and Indecent Exposure in that it addresses a situation where the perpetrator gains sexual pleasure without the consent of the victim.  There is support for this section in Islamic law as Muslim jurists have noted that it is unlawful for a man to take sexual pleasure by lustfully staring at a woman, who they are not married to, for a prolonged period of time.[107]  

Corresponding Provision(s):  None

Comment:

Generally.  Section 134 provides two general rules that apply to all of the provisions in Chapter 130.  Subsection (a) states that minors are unable to give consent to sexual intercourse or sexual contact.  However, the Subsection also creates an exception where the sexual contact is with the minor’s spouse, as long as the minor is below 18 years old and legally married under Maldivian law.  This exception should be understood in conjunction with other Maldivian law.  Provision 4A of the Family Law (Law No. 4/2000) states that you must be 18 years old to be legally married.  Provision 4B of the same law allows you to marry if you are younger than 18 years old as long as you meet certain requirements including having reached puberty, being in the proper state of mind, etc.  Having met those requirements, an individual would still need permission from the Registrar of marriages.  Furthermore, Family Regulation (2006), Provision 4 states that you cannot be married if you are still a student in high school or below (“madrassa”).  Legal marriage, and thus consent, of an individual below the age of 18 would only exist in rare cases.  Marriages involving minors that take place outside the Maldives would need to meet the requirements set forth in Maldivian law for recognizing foreign marital contracts.   

Section 134(b) clarifies that where an offense requires a victim to be under the age of 18, the defendant need only be negligent as to the person’s age, unless otherwise expressly provided.  In other words, a reasonable mistake as to the victim’s age may negate the required culpability for an offense (See Section 26 and corresponding Commentary.  Note that an unreasonable mistake of fact is never a defense.).  Section 133(c) provides an exception to any offense in this Chapter for medical examinations or procedures performed by physicians, licensed medical professionals, parents, or legal guardians:  (a) for the purpose of providing medical care, and (b) in a manner consistent with accepted medical standards, and (c) for which he has the level of training and expertise required to perform such medical examination or procedure.  The second and third parts of this exception require the fact finder to refer to medical standards promulgated by the government, or if no government standards exist, to standards adopted by the medical profession.

The sentencing factor in Subsection (d) is intended to punish especially severely those who use deception in order to achieve sexual gratification. Masquerading as another person or concealing the nature of one's actions can be as terrible a means to accomplish offenses under this section as using violence. While misleading another person about one's income or social status may not be criminal, pretending to be another person (such as someone's lover or spouse) in order to get that person to perform sexual or erotic acts goes beyond the kind of deception commonly encountered and constitutes criminally culpable action.  Similarly, deceiving another by pretending to perform a medical procedure or some other innocent act in order to obtain sexual gratification is a gross violation of another's privacy and deserves special punishment. In either of these cases, the sentencing court should aggravate the offender’s baseline sentence by one level.

Comment:

Generally.  This Section collects defined terms used in Chapter 130 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 130’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter is designed to define offenses for any situation in which an actor limits the ordinary freedom of movement of another without consent or forces someone, against his will, to perform (or not perform) an act.  

Under the Code’s system of liability for multiple offenses, an additional conviction for any such offense would impose an additional punishment on the offender.  Thus, a provision defining the crime of kidnapping, for example, is no longer necessary as that crime is simply a combination of the harm of unlawful restraint with other harms.

Corresponding Provision(s):  Law on the Prevention of Terrorism in the Maldives (1990), Provision 2(b)

Comment:

Generally.  Section 140(a) makes it an offense to restrain someone’s freedom of movement without consent, either by force or otherwise.  The key element of the crime is that the restraint must exist for a “substantial period of time.”  Whether or not the period of restraint is “substantial” is, in part, dependent upon the circumstances of the event.  

The period of time considered substantial should be of such a nature as to inconvenience an ordinary person.  Many offenses in this Code might result in transient restraint of a person; a street corner hold-up detains a person for a matter of seconds or minutes; a bank robbery might detain the employees and customers at a bank for a matter of several minutes.  Generally, these incidental infringements on the freedom of movement are understood as necessary to the nature of the offenses and are already incorporated in the harm addressed by the underlying offense.  When a person is restrained for an extended period of time, such that the restraint becomes an independently cognizable harm in itself, such conduct gives rise to a charge of unlawful restraint.  For instance, while the restraint of people necessary to complete a reasonably fast bank robbery would not give rise to a charge of unlawful restraint, bank robbers who use the bank employees and customers as hostages in a stand-off with police over the course of several hours have committed the offense of unlawful restraint.

Lack of consent is a material element of the offense under 140(a).  Since minors are not legally able to give consent, anyone restraining the freedom of movement of a minor (or anyone else unable to give consent), without the consent of the minor’s parent or legal guardian, is guilty of the offense, regardless of the willingness of the minor victim to be restrained.

Section 140(b) defines two terms used in this Section.  It is important to understand that the term “restrain,” as defined in Subsection (b)(1), is written broadly enough to include forms of restraint other than the direct use of physical force against the victim, including intimidation or confinement.  In addition, the term also encompasses the act of having someone restrained by others.  Subsection (b)(2)’s definition of “freedom of movement” – the opportunity to travel from one place to another that an ordinary person normally enjoys – does not include situations where one has voluntarily agreed to be restrained for a period of time.  For instance, a person on an airplane does not have freedom to move out of the airplane even though the flight may last for many hours.  Otherwise, the term “freedom of movement” should be construed expansively.

Section 140(c) provides grading for the offense.  Subsection 140(c)(1) makes the offense a Class 3 felony when the person acts knowingly and restrains another person for the purpose of placing the person in involuntary servitude.  Involuntary servitude means any compelled service for which an ordinary person would otherwise expect to be paid.  The provision’s use of the phrase “for the purpose of placing that person in involuntary servitude” covers any intention to impose such servitude whether or not it ever occurs.  Furthermore, it does not matter whether the purpose of involuntary servitude was formed at the time of the initial restraint.  Therefore, a person is guilty of a Class 3 felony if he restrains a person and only later, while still restraining the victim, decides to force that person into involuntary servitude.  Section 140(c)(2) makes the offense a Class 4 felony if the person acts knowingly and restrains the victim for more than one day.  The meaning of “more than one day” is for any period exceeding 24 hours.  Section 140(c)(3) makes all other offenses under this section Class 1 misdemeanors.  Therefore, any unlawful restraint committed recklessly rather than knowingly or intentionally is a Class 1 misdemeanor, regardless of how long the victim is restrained.  Note that Section 1104 of the sentencing guidelines provides that if an offender commits an offense against a person who is particularly vulnerable to the harm contemplated by this or any other offense, for example an elderly person, the baseline sentence shall be aggravated one level.

Section 140(c)(4) mitigates the grading of unlawful restraint for parents and legal guardians, as well as those who reasonably believe that they are parents or legal guardians.  In these situations, the offense is merely a Class 1 misdemeanor.  This is intended to keep interfamilial or custody disputes from resulting in harsh prison sentences.  However, to qualify for mitigation, the actor must also reasonably believe that the victim is unable to give consent.  So in the situation where a father abducts his 18-year-old daughter, he is still guilty of an offense since an 18-year-old is capable of giving consent.

Relation to other laws.  The only provision that speaks to kidnapping in Maldivian law generally prohibits it as a form of terrorism.[108]

 Islamic law prohibits individuals restraining other members of society against their will, as this right is reserved for the government.[109]  Unlawful restraint is also arguably among the harms sought to be prevented by the hadd offense of hiraba.  Imam Khattabi explains that there are no grounds for depriving someone of their freedom unless ordered by the court.[110]

Corresponding Provision(s):  None

Comment:

Generally.  Section 141(a) makes it an offense to threaten certain specific kinds of harm in order to compel a person, against his will, to either take some action or avoid taking some action.  This section recognizes that people should generally be free to make their own decisions without interference from other individuals, particularly interference in the form of threats to commit offensive acts, whether those acts be crimes, slanderous accusations, invasions of privacy, or misuse of official power.

The exception in (b) insulates from prosecution appropriate actions that are regularly taken to modify the behavior of others.  For instance, if X knows of Y’s criminal behavior she can threaten to call the police if Y does not stop that behavior, because such a response is premised on belief in the truthfulness of the accusation and is closely related to the behavior the person seeks to modify. 

Section 141(c) provides grading for the offense.  The offense is considered felonious coercion and treated as a Class 5 felony if the action compelled constitutes a felony or if the harm threatened constitutes a felony.  Otherwise the offense is considered simply criminal coercion and treated as a Class 1 misdemeanor.  Therefore, if an actor threatened to seriously assault the victim unless he writes a letter for the actor, the offense would be a Class 5 felony because the threat of serious assault was itself a felony.  It would also be a felony if a person threatened to spread lies about the victim unless the victim shoots someone because the action the perpetrator seeks to compel is a felony.  However, if the person merely threatened to spread lies about someone unless he writes a letter, then the offense is a Class 1 misdemeanor.

Relation to other laws.  Prior Maldivian law is silent on this issue.  Islamic law prohibits criminal coercion and punishes the compeller as though he had carried out the offense himself.[111]  This Section increases the penalty, as compared to Islamic law, if the compelled action is not a crime.  However, this Section mitigates the Islamic law penalty if the compelled action would normally constitute an offense of a level higher than a Class 5 felony.

Comment:

Generally.  This Section collects defined terms used in Chapter 140 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 140’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

Unlike many Western codes, this Code attempts to create separate offenses for distinct harms.  The essence of this Chapter is to punish and to deter unlawful taking and misuse of the property of others.  Some criminal law systems define what the commentators have called “composite” crimes: crimes that entail more than one type of harm.  For instance, many Western codes punish “robbery,” which is theft by force or threat of force, punishing under a single provision both the theft and the illegal use of force.  Under this Code, the two harms should be punished as separate crimes, as theft and as assault.  In reading and using this Code, the reader is encouraged to look to other provisions of the Code and consider how one action might entail multiple harms and might be punished under multiple provisions of the Code.  While some provisions of prior Maldivian law describing certain aggravating factors for punishment have not been completely replicated in this Chapter, those provisions will be addressed in the appropriate sections.  For instance, those provisions heightening punishments for thefts from a home are found in Chapter 230 (Criminal Intrusion Offenses).

 Using particular offenses to punish particular harms should be considered when construing the language of this Chapter and the Code generally.  For instance, in the event of an especially heinous and brutal robbery which results in serious bodily injury to the victim, the allowance of an adjustment in sentencing under Subsection 95(a) should apply only to the assault charge, not to the theft charge, since the “heinous and brutal” nature of the act was in the assault, not in the wrongful taking.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions, 131a, 132, 143, 144, 145 and 148

Comment:

Generally.  Subsection (a) of this Section is intended to facilitate the prosecution of the underlying harm of theft:  wrongful deprivation of the property of others with the purpose of permanently depriving them of it.  The following Sections establish distinct ways of committing theft, but state the elements of a single offense.  If a prosecutor misstates the nature of a particular theft in an indictment or other initial proceeding, this Subsection is intended to allow him to alter his theory of the crime without having to withdraw and refile his charges.

Subsection (b) sets out the general grading scheme for all theft offenses.  The intent behind this grading scheme is to punish proportionally the culpability of the theft in question.  In determining the amount of appropriate punishment, the average income of a Maldivian is the benchmark.  This is because a person can expect to inflict economic harm in proportion to the hardship that loss presents, which will naturally relate to the income of the victim.  Minimal harm – where only a few days’ wages are stolen – calls for lower grading; tremendous harm – where a person would need years of work to regain what has been stolen – calls for the highest grading.   

Subsection (c) protects those who take or use property reasonably believing that they have the right to do so or that they would likely receive permission from the owner for the use or taking.  This defense applies to all of Chapter 210, as opposed to Subsections (a) and (b), which apply only to Sections 211 through 216.  Disputes over property occur in all societies; those who act reasonably based on their perceived property rights should not be punished because another person was later held to be the rightful owner of a piece of property.  

Subsection (c) also protects the person who reasonably believes that the owner of some property would grant him certain permissions to use the property, such as allowing him passage over some piece of land, allowing him to borrow a vehicle such as a boat or a bicycle, or allowing him to use a tool or implement.  The trier of fact may rely on any number of sources to determine whether a reasonable person in the defendant’s situation would have believed that the owner would not have objected to use of his property, including customs in the community, past grants of permission by the owner to the defendant or to others, the degree of amity between the two parties, and the steps which the owner has taken to secure his property, etc. 

The definition of “value” in Subsection (d) is important to the construction of the grading provisions.  A default rule that holds a defendant strictly liable for the value of the property he steals would create perverse results and measure the defendant’s liability poorly.  If a person were to steal a pair of pants, not knowing that a diamond necklace was in the pocket, what might otherwise have been a petty theft would then be punished with the most serious grade.  However, if a person discovers that he has stolen property whose current market value is beyond his expectations and then fails to return it, he has manifested a purpose to deprive the owner of property of that value. 

 Relation to other laws.  One portion of prior Maldivian law reiterated in this Section is the heightened penalty relating to government property, as discussed above. Other Sections outline the rough penalties for theft generally.  Provision 131(a) of the prior Penal Code (1966) provides a kind of consolidation clause by treating “theft, misappropriation, criminal breach of trust, cheating, and extortion” the same for purposes of sentencing.  Provision 132 of the prior Code aggravated the penalty according to the value of the property.  The valuation of the property under Provision 148 of the prior Penal Code (1966) depends only on the current value of the property, but as explained above, such a policy has a perverse effect on punishment for theft.

Subsection (b)’s grading scheme is supported by Islamic law, which prohibits hadd punishment for theft of an item valued less than the maintenance of a man for one day.  Ibn Qayyim al-Jawziyya states that traditionally the minimum value (nisab) below which punishment would not be instituted was set at one-quarter dinar and this was based on a value sufficient for the daily maintenance of an average man.  As a result, Mohamed El-Awa believes the value should change to reflect present day circumstances.[112]

Subsection (c) is supported by Islamic law.  Ibn Rushd notes that theft consists of taking property when the person taking the property has not been entrusted with the property.[113] In general, however, this Chapter defines theft less broadly than the hadd offense of theft (sariqa), which also includes offenses that would be considered civil wrongs by this Code.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 131(a), 132, 133, 134,

135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147 and 148

Comment:

 Generally.  The focus of this Section is theft accomplished by a physical taking or by appropriating control over the property.  The two parts of the offense have different required mens reas or states of mind.  First, a person must know that he is taking property of another; second, that person must intend to deprive the other person permanently of his property.  It is not necessary under this definition to retain possession of the property; all that is necessary is to intend to deprive the other person of possession.  So, a person might take property of another and throw it into the sea, knowing that the owner will never recover the item.  It is important in such a case that property damage not be added as an offense.  As to a single possessed item, a person can commit property damage or theft, but not both in the same action.  Theft should be the charge whenever a person manifests a purpose to deprive another permanently of his property and the value of the property is completely destroyed.  Property damage will be an appropriate charge whenever some value remains in the property, or where the defendant does not meet the culpability requirements for theft, as when the defendant is only reckless as to the damage. 

 A person exerts unauthorized control over property within the meaning of Subsection (a)(1) when the person seizes control of property in a way that undermines the other person’s ownership.  Most examples of such control involve immovable property (rather than movable property) as where a person farms a neighbor’s field without the owner’s permission. 

 “Taking” is the more common form of theft under Subsection (a)(1).  “Taking” means physically asserting possession over property.  One can easily imagine a person taking movable property; he might also take immovable property by physically excluding the owners.  The definition of “property” in Section 17 is very expansive.  Other codes distinguish between two types of properties: immovable (“real property”) and moveable (“personal property”); Code uses a broad definition of property as it is better than making such distinctions, which usually have little practical effect.  The nature of property is becoming more impermanent, as people attach value to items representing rights, interests, and obligations, such as promissory notes, copyrights, usage agreements, and other items that do not resemble the traditional image of property.  

 The definition of “property of another” in Section 17 protects the property of any person with a potentially greater property right as compared to the lawful owner.  This expansive definition of “another” is intended to reach cases where the person having physical possession of the property is not the rightful owner.  A person holding a temporary lease of property might be a holder of a greater right.  Even where the person holding physical possession of an item has stolen the property from its rightful owner, the Code would still not allow a third person who is not the rightful owner to steal the item from the possessor.  For example, if a thief has taken a person’s fishing catch without that person’s knowledge and subsequently a second thief steals the fishing catch, the second thief will still be liable for theft even if he has only deprived a possessor—rather than an owner—of the fishing catch.

 Relation to other laws.  Prior Maldivian criminal law does not prescribe a particular definition for theft or attempt to define the nature of property that could be subject to theft.  This Section describes conduct that lies at the heart of the offense of “theft” as generally used in the prior Penal Code (1966), Provisions 131a through 148.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 88(13), 131a, 132, 143 and 144

Comment:

Generally.  This Section is concerned with the imposition of penalties for theft performed by means of deception or misrepresentation.  The deception itself is not the harm redressed by this Section; Chapter 310 addresses deception as an independent evil.  In construing this Section and Chapter 310, the difference between the harms caused by theft and deception should be kept in mind.

Committing theft under this Section requires knowledge of the deprivation and intent to deceive or misrepresent.  Failure to reveal information, except as to legal impediments to clear ownership (Section 212(b)(1)(D)) and failure to correct a false impression created by the person (Section 212(b)(1)(C)) create affirmative duties.  Beyond those two cases, a person has no affirmative duty to correct the ignorance or mistake of the other party to a transaction, even if the person knows of the other party’s ignorance.  However, affirmative acts that mislead the other party generally constitute theft by deception.  The only two exceptions to that proposition are outlined in Subsection (c), which permits misleading statements that lack financial significance and statements unlikely to deceive a reasonable person.  The latter are sometimes referred to as “puffery” – i.e., broad, often subjective statements of quality that are not easily verified.  For example, stating that one’s product is “the best” is unlikely to deceive a reasonable consumer, and therefore does not constitute theft by deception, even if all agree that the product in question is the worst on the market.  In contrast, false statements whose falsity is objectively demonstrable may give rise to a claim of theft by deception. 

 Subsection (b)(3) defines “financial instrument” broadly to encompass many of the common items used to signify value in commerce and finance.  While checks, credit and debit cards, and money orders are the primary targets of this provision, it is likely that new financial instruments will develop in the near future, and therefore a definition broad enough to cover most new instruments without the need for redrafting is required.  Although fraud in connection with stocks, bonds, options, and derivatives is less common, this Section’s sweeping definition also covers these cases.  Some common financial instruments covered by this Section are stocks (Subsection (b)(3)(A)), bonds (Subsection (b)(3)(B)), options (Subsection (b)(3)(C)) and derivatives (Subsection (b)(3)(D)).

 Section 212(d) precludes relying on a person’s failure to fulfill a promise as prima facie evidence of deception.  Many people make promises honestly intending to fulfill them, but fail to do so for other reasons.  Failure to fulfill a promise can only illustrate a person’s state of mind at the time when the promise should have been fulfilled.  While a failure to perform is certainly important in showing purpose to deceive, by itself it is not sufficient to show intent to deceive.   Several presumptions are required, however, as to intent to deceive.  These rebuttable presumptions are discussed in Subsection (e)(1)-(3).  Issuing a check without having a corresponding account or without funds, or failing to pay promptly will be grounds for a presumption of purpose to deceive.  Similarly, a person’s use of a stolen, revoked, or otherwise unusable credit card provides grounds to presume purpose to deceive.  Finally, the failure to return rented or leased property promptly is grounds for a similar presumption.  All these presumptions are subject to rebuttal by the defendant, provided that he can do so by a preponderance of the evidence.  The reason for such presumptions is that the excuses for such conduct are likely to be implausible, so implausible that it is appropriate to require the defendant to prove his innocence by a preponderance of the evidence, rather than requiring the prosecution to establish the defendant’s purpose to deceive to a practical certainty.  Note that Subsection (e)(3) requires the owner to make an effective request for return of the property.

 Finally, because of the grave nature of theft by misuse of a credit card, check, or other commonly used financial instrument and because of its effects on the general public’s trust in those instruments, there is a special harm caused by abuse of these instruments.  Subsection (f) mandates that such an offense must be at least a Class 1 misdemeanor.  Subsection (f) does not preclude a higher grade for the offense.  The inclusion of the word “common” in “common financial instrument” is meant to exclude exotic financial instruments like intricate interest rate swaps, securitized debts, and other instruments exclusively used in business circles.  The definition of “financial instrument” is found in Subsection (b)(3).

Relation to other laws.  While theft by deception is not defined anywhere in prior Maldivian law, the theft provisions of the prior Penal Code (1966) do refer to “deceit,” “criminal breach of trust,” “misappropriation,” and “cheating.”  These terms have been understood to refer to theft by deception, though such terms likely encompass other concepts as well. 

The punishment of theft by deception has long historical precedent in Islamic law.[114]  Ahmad b. Naqib al-Misri points out that if a seller knows of a defect in an article he must disclose it.[115]  Islamic law also prohibits deceptive acquisition of property or wealth, which is often construed as a form of theft.[116]  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 88(12), 131a, 132, 135, 138,139, 140, 141, 142, 143, 145, 147 and148; Rules Relating to the Conduct of Judicial

Proceedings, Provision 72

Comment:

Generally.  Theft by extortion requires a culpability level of purpose in taking the other person’s property and in making the threat of substantial harm.  The phrase “substantial harm” appears frequently in this Code.  In the context of this Section, “substantial harm” is caused by any act or omission that would exert meaningful coercion on a reasonable person.  The person threatened need not be the person coerced, nor need the person threatened be related in any way to the person coerced.  Other forms of harm may also constitute “substantial harm.”  Economic harm, like theft or property destruction, at least when the property is that of the threatened person or a close friend or family member, should constitute “substantial harm.” 

 A threat to reveal information that might embarrass a person, damage his reputation, or give grounds to others for legal action can also constitute “substantial harm” within the meaning of Subsection (a)(2), subject to the exception in Subsection (b).  Subsection (b)’s exceptions apply only to threats made when the defendant honestly seeks the property as restitution or indemnification (1) for harm done directly related to the circumstances of the taking, or (2) as compensation for debt or property owed pursuant to any lawful transaction.  For instance, a person might legally threaten to reveal an unsafe condition at his workplace with the aim of persuading his employers to remove the danger.  However, he may not make this threat with the aim of extortion, forcing his employer into paying him money to stay quiet.  In the first case, the relief sought is closely related to the legitimate goal of the threat, hence the threat is permissible.  In the second case, the payment sought is not in any sense related to a legitimate goal, hence the threat is not permissible.  A difficult issue arises if a person threatens to bring suit against another and seeks payment for not bringing the suit, particularly where the nature of the suit might be embarrassing to the defendant.  Generally, such cases should be resolved in favor of the would-be plaintiff, to encourage settlement of lawsuits.  But in certain cases, especially when the payment demanded far exceeds the likely recovery, a trier of fact may find that the plaintiff has threatened “substantial harm” within the meaning of Subsection (a)(2). 

Acts which by themselves would be within the legal power of the person issuing the threat may constitute “substantial harm” within the meaning of the statute if the property sought is not related to the legal right of the person issuing the threat.  For example, a banker may threaten to foreclose on the house of a debtor unless payment is made to the bank on the debt.  The banker does not commit theft by extortion because the property sought relates to his right to foreclose on the house.  However, the same banker may not threaten to foreclose on a home unless the owner pays him a personal bribe.  In other words, if the compensation requested is unrelated to the origin of the banker’s right to foreclose on the house, he commits theft by extortion.  Similarly, a police officer may legitimately threaten to detain a suspected criminal unless bail is paid, because seeking payment of bail comes from the same authority that permits him to continue to hold the suspect.  But the officer is liable for theft by extortion if he requests a bribe before permitting the suspect to leave jail.  Seeking payment or benefits beyond one’s legal rights in exchange for not carrying out a threat of substantial harm represents a serious evil.  

Note that this Section addresses only theft accomplished by means of extortion.  Where a person does not seek property, but instead seeks performance or omission of an act which does not constitute a “service,” the person may engage in conduct similar to the conduct proscribed in this Section, yet commit the offense of criminal coercion listed in Section 141 (thus precluding a prosecution under this Section).  This Section only applies where the purpose of the threat is to obtain property, as defined in this Chapter.   

Relation to other laws.  The prior Penal Code (1966) mentions “extortion” several times as a punishable offense in the same category as theft, clearly evincing an intent to punish extortion.  This Section broadens the definition of extortion by including all property extorted, not simply money.  The higher sentences demanded for extortion involving threat of force or weapons will be considered in other Sections of the Code. 

Islamic law generally supports this Section because extortion is a form of coercion, which removes an individual’s consent and intention.[117]  Islamic law also considers it unlawful to frighten an individual into doing something averse to them.[118]

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provision 223

Comment:                   

 Generally.  The provision of services is increasingly important to the well-being of a society.  When a person defrauds a service provider, the costs of such theft are passed on to society as a whole, the greatest harm being inflicted on those least able to pay for such services. 

For this reason, theft of services is an important subject for criminalization. 

What constitutes a “service” under this Section is very broadly defined to encompass the array of activities that may constitute “service.”  Any public utility service, such as electricity, gas, or water, when the service is provided by subscription and not incrementally (as by gas canisters or water bottles) will constitute a service.  Any communications program constitutes a service, including access to a communications network, such as telephone, internet, cable, or other means of communication, or receipt of information, as in a financial wire service.  Professional, rental, and tourism services can also constitute a “service” under this section, including car rentals, guide services, boat chartering, food service, housekeeping services, use of buses and taxis, rented real estate, hotel accommodations, and museum admissions.  Essentially, any service for which one would expect to pay constitutes a service for the purpose of this Section. 

The theft of services can be accomplished by two means under this statute.  First, a person without legal access to a service might wrongfully gain access to a service to which he is not entitled, similar to where a person who has not paid for electric service creates his own link to standing power lines.  A second means of committing theft of services is for a person with access to the service to distribute the service to another person to whom the service ought not go, as where a worker for an internet service provider wrongfully creates internet access for a person not a customer of the company and allows such other person to access telecommunication serices without paying.

The rebuttable presumption in Subsection (c) provides that the trier of fact shall presume knowing theft of services if a person attempts to leave a facility without paying or fails to pay at the customary time.  

Relation to other laws.  Prior Maldivian law only recognizes this special harm in the text of one provision, relating to the theft of electric service.  Despite the lack of mention of such a form of theft, theft of services is likely prosecuted as theft generally under the prior Penal Code (1966).  Carefully defining what constitutes a service, and thus what constitutes theft, will increase the deterrent value of the statute. 

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Section

242; Maldives Penal Code (1966), Provisions 131a, 132, 135, 143, 144, 146 and 148

Comment: 

Generally.  This offense punishes taking of property from a person to whom the defendant owes a duty of care.  Where such a duty exists, treating property of another as one’s own and failing to render services or payments promised or owed gives rise to liability for theft or for the loss incurred.  Essentially, this crime may be committed any time a person takes possession of funds or other property with the understanding that he is to dispose of or otherwise deal with the property in a particular fashion.  Liability extends to a broker or banker who agrees to deposit a customer’s funds and then misuses the funds.  Likewise an employer that disposes of an employee’s paycheck in a way contrary to the interests of the employee is liable under this Section. 

 The key element of the offense is the duty owed by the perpetrator to the owner of the funds or other property.  Whether the duty stems from a contractual relationship (such as a mechanic who holds a customer’s motorbike overnight while fixing it), or from a fiduciary relationship (such as a broker who disposes of a customer’s funds), abuse of the trust inherent in the relationship by misuse of the funds or property should be punished. 

 The rebuttable presumptions are intended to cover the most common cases.  First, under Subsection (b)(1), the judge must presume that a professional in a particular field knows his legal obligations.  Without this presumption, the law would reward ignorance and discourage professionals from learning their ethical duties.  Subsection (b)(1)’s strong presumption can be rebutted only by a showing that the law itself was ambiguous; even an honest, reasonable mistake is not enough.  The second presumption, found in Subsection (b)(2), draws the inference that funds have been misused when a person fails to account for funds with which he has been entrusted or fails to make a required payment upon lawful demand.  Since the defendant has typically been in sole possession or control of the funds or property in question, requiring the prosecution to prove to a practical certainty that the funds have not been lost by mistake would seriously impede enforcement of the statute.

 The Definitions Section reflects the concerns expressed above.  Under Subsection (c)(1), a “financial institution” is “a bank, insurance company, credit union, building and loan association, investment trust, or other place held out to the public as a medium of savings, means of collective investment, or place for the deposit of funds.”  Under Subsection (c)(2), “financial professional” is “a person employed to keep, manage, audit, or deal in funds or financial instruments, whose position requires professional education.”  The definition of “financial professional” requires professional education to justify the presumption that financial professionals are aware of their legal obligations.  If a person has received advanced education in his field (such as accountancy), it is fair to require that he know his ethical duties as a professional.  In other words, a person who keeps the books for his small corner store and lacks professional education should not be held to the same standard as an educated accountant.  Under this Subsection, the “professional education” requirement is satisfied by any post-secondary degree or certification.  Under Subsection (c)(3), a “fiduciary” is any person who has “a legal duty to act on behalf of or in the interest of a corporation, person, or organization.”  The rationale for holding fiduciaries liable under this Section is that wherever one is placed in such a position of trust, one should be held to that level of trust. 

 Subsection (d) indicates that any offense categorized within this section shall receive at least a Class 1 misdemeanor classification, regardless of any other factors.

 Relation to other laws.  Prior Maldivian law refers in several places to criminal abuse of trust; the meaning of that phrase is roughly akin to its meaning in this Section. 

Islamic law also punishes similar behavior where there is a breach of trust.[119]  Islamic law places liability for the “entrusted funds” with the person commissioned to carry out the delivery.   As Ahmad b. Naqib al-Misri points out, a person entrusted with money is liable and must pay for its loss, as with any trust.”[120] 

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provision 71

Comment: 

 Generally.  This statute does not impose a heavy burden on a person who receives or discovers the property of another.  The person need only make reasonable efforts, to restore the property to its rightful owner.  If no reasonable means are available for returning property to its owner, a person may keep received or discovered property of another.  The best example of such a case would be if a person were to find a single currency note on a busy street.  Since it would be difficult (if not impossible) to find the rightful owner (i.e., since there are no reasonable measures available to the person), the person may keep the bill without fear of liability.  In other cases, reasonable measures may exist to restore received or discovered property, such as posting a sign in the area in which the property is found or giving the property to an employee of the establishment in which it is found.  In certain circumstances, especially if the item is distinctive or labeled with the owner’s name or other information, the person may have a duty to attempt to contact the rightful owner and restore the property to him.  A judge should consider custom, the circumstances, the value of the property, the uniqueness of the property, the potential number of false claimants, alternative means of restoration, etc. in determining whether a person’s effort is reasonable.

 Subsection (a)(2)’s requirement of purpose to deprive another of his property is important.  A person may take possession of property by accident or with the purpose of keeping it safe without also having the specific purpose of depriving the owner of his property.  The reasonable efforts discussed above must also be analyzed to see if they evince a purpose to deprive or instead a good faith effort to restore the property in question to its owner. 

 The definition of “owner” in Subsection (b) differs from the definition of “another” in “property of another” in Section 17, because there would be no justice in requiring a person who receives or discovers property to return it to someone other than the rightful owner.  A person is not the “owner” of property unless he has a legal claim of right. 

Relation to other laws.  Rules Relating to the Conduct of Judicial Proceedings, Provision 71 is a similar provision in Maldivian law.  This Section departs from this law by requiring a specific culpability level and does not alter punishment on the basis of prior offenses.  This Code addresses the effect of recidivism in Section 1104 (Aggravation and Mitigation for Prior Criminal History) of the sentencing guidelines.

Islamic law proscribes the keeping of lost property without an honest effort to restore it to its owner.[121]  This statute imposes a minimal burden on the finder or receiver and only imposes liability where there is a purpose to deprive, and so should not sweep so broadly as to include innocent people.  Instead, it ought to encourage the restoration of lost or wrongly delivered property.

Corresponding Provision(s):  None

Comment: 

 Generally.  The purpose of this Section is to punish wrongful use of property that does not rise to the level of theft.  The typical case covered by this Section occurs where a person does not intend to deprive another of property permanently, but instead intends only to use property temporarily.  A common example is joyriding, where a person takes another’s motorbike, boat, or bicycle for the purpose of using it temporarily and then returning it or abandoning it in a place where it is likely to be found.  Temporary use of real estate or temporary use of other property (tools or nets) is subject to liability under this Section.  The definition of “temporary use” is largely self-explanatory, but it should be noted that this could cover a period of several months or even some years.  The statute also precludes use of property in excess of the rights granted.  So, where an owner grants someone authority to use property in a certain way, and the user exceeds the permission which the owner has given him, the user can be held liable to the extent that his use was inconsistent with the reasonably anticipated wishes of the owner.  For instance, the owner of a motorbike might permit another to borrow his motorbike, but also prohibit taking the motorbike to another island.  The user is liable under this Section if he should have anticipated that the owner would not have permitted his taking the motorbike to another island.  This Section should not be construed to proscribe all use of property without explicit consent by the owner.  Most societies have traditions of permitting property use by trusted friends, relatives, or neighbors under certain circumstances.  The judge should consider Maldivian customs, the history of the relationship between the user and owner in relation to the property in question and property in general, the overall relationship between the user and owner, the value of the item used, the value of its use, the potential for damage to the item used, and any other relevant factors.  This information, in addition to expert testimony, could all be used to establish the “reasonably assessed value” of an item. 

 The grading for this offense varies with the value of the use itself, not with the value of the item.  Thus, where a person uses another’s motorbike without consent and contrary to the owner’s reasonably foreseeable conditions of use, the value used to grade the offense is the value of use of the car for the few hours it was used, not the value of the whole motorbike.  Otherwise, the grading scheme in Subsection 210(b) applies unchanged. 

Relation to other laws.  There is no similar provision in prior Maldivian law.  However, this provision is commonly found in other codes and helps enforce property rights.  Primary among property rights is the right to exclude others from use of one’s property; without vigorous enforcement, this right becomes meaningless.

This Section is generally supported by Islamic law, which punishes any use of another’s property without permission.[122]

Corresponding Provision(s):  None

Comment:

  Generally.  The purpose of this Section is to punish and deter people who traffic in stolen goods.  This Section differs from Section 211 in that Subsection (a)(1) requires only recklessness as to whether another person is the rightful owner of property, rather than purpose to permanently deprive the owner of possession.  For this reason, Subsection (b) prescribes that the offense in this Section is one grade lower than the corresponding theft offense would be in Sections 211 through 216.  Otherwise this offense resembles other theft offenses, consisting as it does of retaining property in violation of another’s superior right to the property.  Subsection (a)(2) seeks to protect persons with innocent intentions, such as those who receive or retain property for the purpose of returning it to its owner.  However, it should be noted that Subsection (a)(1) incorporates a doctrine similar to “willful blindness” by punishing recklessness in relation to whether a property is stolen or not.  For example, transporting a briefcase for a known drug dealer, but not opening it is not sufficient to preclude liability.

 Relation to other laws.  There is no provision within prior Maldivian law relating to this Section.  However, Islamic law broadly places responsibility for receipt of stolen goods on the receiver, regardless of whether he knows they were stolen or not.[123]  The underlying principle of this Section is compatible with this doctrine.

Comment: 

Generally.  This Section collects defined terms used in Chapter 210 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 210’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

Crimes against property can be reduced to either:  property damage, endangering property, or threatening to damage property.  This Chapter is designed to simplify and reduce all offenses against property to these three essential harms and to provide a rational grading structure for the numerous property-damage and property-tampering provisions in prior law that are consolidated in it.  For every harm, the Code defines aggravating factors with corresponding adjustments to the offense in order to maintain a flexible grading system reflecting the perceived severity of the individual crime.  

 Under the Code’s system of liability for multiple offenses, an additional conviction for any such offense would impose additional punishment on the offender, rather than being rendered insignificant by inclusion within a concurrent sentence.  Thus, a provision defining the crime of arson, for example, is no longer necessary as that crime is simply a combination of the harms of the separate offenses of property damage, endangerment to property, and endangerment of life.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 59, 110, 114, 115 and

88(19); Law on Public Services, Art. 9

Comment:

Generally.  This Section makes it an offense to damage property belonging to another.  Property damage can result from either directly damaging another’s property or from tampering with property.  Section 220(a) includes both harms.

Section 220(a)(2) contemplates the scenario in which an individual does not cause any physical damage to the property tampered with, but indirectly damages other property.  For example, if an individual moves a buoy or marker used to delineate a sea route, recklessly disregarding the possibility that a seagoing vessel will be led astray, and the seagoing vessel is led off course and damaged, the individual has committed an offense under 220(a)(2).  Note that under 220(a)(2), the property tampered with could be the actor’s own or it could belong to someone else.  So long as the actor has the requisite mental state and the property ultimately damaged belongs to someone else, the activity falls under 220(a)(2).  This rule is subject to the exception in 220(b) discussed below.  Under Subsection (a)(2), if an actor tampers with property knowing that his actions will result in damage to property of another, his offense will be increased one grade.

 In determining whether the individual possessed the requisite mental state for an offense under this Section, the judge should focus on the individual’s mental state as to the result element of damage caused.  Returning to the above hypothetical, an individual may knowingly move the buoy but may reasonably be unaware that his actions may result in harm to the seagoing vessel.  In that case, he has not acted with recklessness as to the resulting damage and has not committed an offense under Section 220(a).  

The exception in Section 220(b) protects property owners who act within their property rights.  The exception in 220(b) requires:  (1) that the individual act upon his own property, (2) that his actions not exceed his legal rights related to the property, and (3) that the victim of the property damage did not have a legal right to rely on the individual’s property or services.   The following example illustrates how the exception in Section 220(b) operates:

Example 1:  Fehifushi, an unused island, is owned by O.  Without his knowledge, T, a trespasser, enters Fehifushi, builds a small shelter and begins to reside on the island.  O then decides to clear his island so that it can be used as a resort.  Not knowing of T’s presence, he carefully sets part of the island on fire to clear it of grass.  As a result, T’s property is destroyed.  In this case, the owner of Fehifushi was within his rights to clear his property, and the trespasser had no legal right to reside on the property.  Thus, the owner falls under the exception of 220(b) and is not guilty of property damage.

Section 220(c) creates a rebuttable presumption that a person who knowingly uses fire or a catastrophic agent, and damages property of another, was reckless with respect to the other person’s property.  This presumption reflects the fact that fire and catastrophic agents are inherently dangerous and should be used only with extreme caution.  The Code imposes a burden on those that use such agents to exercise adequate caution.  However, because this presumption is rebuttable, the actor will be allowed to present evidence showing that he merely acted negligently, or perhaps even acted reasonably, but the property damage resulted anyway.  If the actor successfully meets this burden of proof he may avoid liability under this Section. 

The grading system in Subsection (d) is designed to operate with respect to two factors:

the amount of damage caused and the intent of the actor.  The Code’s grading system reflects a determination that the punishment should be proportionate to the harm caused and that an individual is more culpable when he acts knowingly or purposely than if his behavior is merely reckless in nature.  The monetary amounts used in Subsections (d)(1) through (d)(4) are explained extensively in Section 210.  

In addition, Subsection (d)(6) reflects the fact that the mere monetary value of a place, artifact or property of environmental significance might not reflect its full value to the community or to society in general; this aggravating factor alters the offense grade to reflect this intangible loss.  Subsection (d)(7) defines what constitutes a place of “environmental significance.”  Note that Section 1105 of this Code provides that if a person deprives the government of property or damages property of the government, his baseline sentence is aggravated by one level.

Subsection (e) defines “tampering” as interfering with or otherwise impeding the ordinary function or effect of property.  It is possible to tamper with one’s own property, as well as with property of another, within the meaning of this definition.   For example, tampering occurs if a person drugs a prize horse right before a major horse race, thereby causing the horse to lose the race.

Relation to other laws.  The prior Penal Code (1966) broadly covered property damage with the following language:  “Where any loss or injury is caused to a person or to property belonging to a person by reason of any act provided, punishment prescribed in this section may be extended up to 15 years.”[124]  This Section encompasses the principles of the prior Code.  

Section 220(a)(2) is purposely written broadly enough to include Provision 110 of the prior Penal Code (1966).[125]

  Under traditional Islamic law, a perpetrator’s intent is irrelevant because the victim of the property damage is to be compensated whether the property is destroyed intentionally or by mistake.182  In either case, the usurper’s punishment is to restitute the owner the value of his property.[126]  Imam al-Shafi’i holds the usurper liable for the usurped property and requires the usurper to restitute the owner’s loss.[127]  Thus, the owner of the property has the option of proceeding against the offender in a civil action.[128]  These standards established by the jurists, however, are more appropriate in a civil law context, where the victim sues the damager of property directly for compensation.  This Code articulates the obligations that individuals owe to the State, and the Code does not affect the rights of parties in the civil context, as provided in Section 14 (Civil Rights to Recovery Preserved).

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 110, 114 and 115; Law on Public Services, Art. 9

Comment:

Generally.  This Section makes it an offense to create a substantial risk of damage to inhabited structures of others and vital public facilities.  This Section does not criminalize the endangerment of all types of property; rather, the property must be an “inhabited structure” regularly used by people as defined in Section 221(b) or a vital public facility of particular importance for the health and welfare of Maldivian citizens as defined in Section 221(d).

The use of the term “significant” in Section 221(a) is meant to guide the court in its determination of guilt.  In order to be found guilty of the offense, the individual must place a significant portion of the property in danger of destruction.  For example, if an individual knowingly breaks the glass window of a home, he may be found guilty for property damage under Section 220, but he has not placed the structure under significant risk of destruction worthy of conviction under Section 221.  If an individual knowingly cuts the brake lines of a public ferry, but the act is discovered before any significant damage results, the actual damage to the property is relatively minor for the purposes of Section 220.  The individual, however, has knowingly created a substantial risk that the vehicle, or a significant portion of it, will be destroyed in an accident.  As such, he may be found guilty of property endangerment under Section 221.  Note that in this case he may also be guilty of reckless endangerment under Section 121.  Section 94 would permit conviction for multiple offenses in this situation.

The definition of an “inhabited structure,” as set out is 221(b) is defined broadly enough that it will likely include most buildings and vehicles used for public and commercial transportation.  Property that would not be covered by this Section includes, but is not limited to, vehicles for private transportation (such a personal automobiles), storage sheds, and other structures not used by humans.  Aside from its application to “public or commercial transportation,” the definition of “inhabited structure” is self-explanatory.

Relation to other laws.  Because the property included in this Section is limited to that which is of particular importance to ordinary Maldivians, the offense is graded according to the mental state of the offender rather than the value of the property endangered.  

This Section is supported generally by the principle in Islamic law known as maslahah (considerations of public interest).  A contemporary Shafi’i scholar, Taha Jabir al-‘Alwani, summarizes this notion by stating that:  “It is generally held that the principle objective of the Shari’ah and all its commandments is to realize the genuine maslahah or benefit of its jurisdiction.”[129]

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 114 and115

Comment:

Generally.  Under this Section, a catastrophe may be threatened either by possessing a catastrophic agent while knowing it will be used to commit a felony, or by threatening to destroy property of great value, destroy five or more inhabited structures, kill five or more persons, or impair a vital public facility. 

Under Subsection (a)(1), a person commits an offense if he threatens to cause a catastrophe.  Such threats create law enforcement and security costs for the government and negatively affect the economic and social well-being of all Maldivians.

Under Subsection (a)(2), a person is guilty of an offense if he knowingly possesses a catastrophic agent. Under Subsection (a)(3), a person is guilty of the offense under (a)(2) if they have either the purpose to use a catastrophic agent to commit a felony, or the knowledge that someone else will use it to commit a felony.  The principle underlying this Section is that catastrophic agents are so inherently dangerous that mere possession of them with criminal purpose should be punished without regard to the actual damage caused or property endangered.  Note the knowledge requirement in both Subsections (a)(2) and (a)(3); this requirement means that a delivery person carrying a catastrophic agent who does not know that the catastrophic agent is rigged to explode is not liable if a third person remotely detonates the catastrophic agent.  

The definition of catastrophe in Section 222(b) is designed to ensure that the offense only includes threats of severe and dramatic violence against many lives or a substantial amount of property.  The Section is written broadly enough to hold liable a person threatening catastrophe in any manner including, but not limited to, the use of spoken and written words or other behavior.  The threat must seem credible to a reasonable person.  

Relation to other laws.  The prior Penal Code (1966) supports this Section.  Provision 114 of the prior Code states: “It is an offence while using, keeping in possession or dealing with fire or combustible matter, any act so negligent to cause danger to the life of a person or any form of injury or loss to another.”  Provision 115 expanded this to include “explosive substance.”[130]  Hence, this Code is consistent with the prior one.  For the relationship of this Section to Islamic law, see the commentary to Section 221.

Comment:

Generally.  This Section collects defined terms used throughout Chapter 220 and provides cross-references to the sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 220’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

This Chapter recognizes a right to privacy that extends to premises, communications, and information.  Section 230 punishes trespassing on the premises of another.  Section 231 broadly prohibits eavesdropping on, surveillance of, and interception of another person’s electronic or oral communications.  Sections 232 and 233 punish unauthorized acquisition, use, and disclosure of information.

The offenses in this Chapter are generally derived from Maldivian law and the Maldivian Constitution.  However, this Code does expand the types of property onto which one can trespass.  Additionally, the Code splits the traditional crime of burglary into trespass and theft for purposes of clarity, flexibility, and prosecutorial accuracy.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 46, 88(3) and 137.

Comment:

Generally.  This provision defines, grades, and provides exceptions to the offense of criminal trespass, which criminalizes a person’s unlicensed presence on another’s property.  Subsection (a) defines the offense.  Subsection (b) enumerates two exceptions to liability. 

Subsection (c) grades the offense and Subsection (d) defines the terms used in this Section.  

Under Subsection (a), the key inquiry is whether the person is permitted or licensed for entry.  But even if entry is permitted, the person entering is liable for any other offense subsequently committed on the property. 

Section 230(a) uses the phrase “permission” to make it clear that either a license (i.e., right) or consent from the owner of the property, or someone empowered by the owner, is needed to enter or remain in a place.    

Subsection (b) defines two exceptions to liability under Subsection (a).  Under Subsection (b)(1) it is not an offense to enter or remain on premises “open to the public,” so long as the person complies with all lawful conditions imposed on access to the premises.  Certain places, such as libraries and stores, are clearly open to the public.  To be sure, a locked entrance, a guard who screens visitors, or a visible sign reading “Private Property,” “No Public Access,” or something similar suffices to indicate that a place is not open to the public.  In the absence of such clear signals, however, the test is whether a reasonable person under the circumstances would understand the premises to be closed to the public.  Examples of Subsection (b)(1)(B)’s  “lawful conditions imposed on access to the premises” include dress requirements (e.g., “no shirt, no shoes, no service”) and conduct requirements (e.g., no loud talking in a library).  An unlawful condition is one that would subject a person to criminal or civil liability if he complied with it, or that is forbidden by statute or the Maldivian Constitution.  For example, a requirement that a patron drink alcohol would be unlawful under Section 616 (Failing to Fast During Ramadan; Consuming Pork or Alcohol); therefore, refusal to comply would not subject a patron to liability for trespass.

Subsection (b)(2) excepts from liability a person who enters or remains in a place under a reasonable belief that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain.  Such a person may know his presence is formally unauthorized, but if his belief that he is licensed to enter or remain is objectively reasonable under the circumstances, then his conduct lacks the culpability and dangerousness this Section seeks to punish.  For example, people know that they ordinarily may not enter another’s private residence without permission.  However, if a person hears a scream for help from within a house, it would be reasonable for him to believe that he may enter even though the owner did not expressly authorize his entry, especially in light of Section 618 (Duty to Aid).  

Subsection (c)(1) grades criminal trespass of a dwelling, highly secured premises, or dangerous premises so marked or signed, as a Class 5 felony, in recognition of the special privacy and security interests at stake in such cases. 

Subsection (c)(2) grades criminal trespass as a Class 1 misdemeanor when it occurs in any separately secured building, inhabited structure, storage structure, or any other place enclosed in a way as to manifestly exclude intruders.  A “separately secured building” includes any building secured by locks or surrounded by fences or other barriers to entry.  (For the definition of “inhabited structure,” see Section 221(b) and accompanying commentary.)  Where a person has enclosed his property so as to manifestly exclude intruders — for example, by erecting a wall or other barrier around his property — a trespasser’s defiance of the person’s effort to exclude intruders demonstrates greater blameworthiness than, for example, a person’s trespass onto another’s open field.  Overall the cases covered by Subsection (c)(2) reflect the common understanding that such trespasses involve less serious intrusions than those covered by Subsection (c)(1), but more serious intrusions than all other trespasses, which Subsection (c)(3) grades as Class 3 misdemeanors.  

The definition of “dwelling” in Subsection (d)(1) is intentionally expansive.  In addition to traditional houses, it includes mobile homes and the sleeper trailers used by truckers.  The definition even includes makeshift shelters constructed by the homeless, so long as they qualify as “residences.”  A shelter is a “residence” within the meaning of this Chapter if a person’s shelter and residence therein are sufficiently permanent.  Factors indicating permanence include the length of time the person has lived in the shelter, the effort the person has put into constructing the shelter, and the likelihood and length of time that the person will continue to live in the shelter.  For example, a tent set up by a person on vacation is not a “residence” and is therefore not a “dwelling.”  However, the same tent may qualify as a residence and a dwelling if the person has lost his home and intends to live in the tent for a significant length of time.

 Subsection (d)(2) defines “highly secured premises” as “any place that is continuously guarded and where display of visible identification is required for entry.”  Military bases and a company’s headquarters are paradigm examples of highly secured premises.

 Subsection (d)(3) defines “storage structure” as “any structure, vehicle, vessel, or aircraft that is used primarily for storage or transportation.”  Structures satisfying this definition include sheds and warehouses.  Vehicles satisfying this definition include buses and large trucks.  Vessels satisfying this definition include ferries, tankers, and cargo ships.  Aircraft satisfying this definition include (fuel) tanker planes and passenger aircraft.

Relation to other laws.  The prior Penal Code (1966) most explicitly prohibits trespass in Provision 88(3) which prohibits trespass into a person’s house.  The prior Code also prohibits an assembly of three or more people for the purpose of criminal trespass in the context of an unlawful assembly.[1]  This prohibition is presumably applicable to the lone individual trespasser as well, and the prior Code implicitly criminalized trespass by forbidding both burglary[2] and theft from a highly secured place.[3]  (Trespass is inherent in both offenses.)

However, this Code slightly revises Provision 88(3) in that it broadens the offense to include not only trespass into someone’s home, but also onto any other property a person has no license or authority to enter.  This change was made to reflect the fact that people may own, and have privacy rights with respect to, a wide variety of different types of property.  

In addition, the Code revises Provisions 137 and 138 since it does not define “burglary” as a separate offense.  Burglary is a combination of trespass and some other offense, usually theft.  Under this Code, what has historically been prosecuted as “burglary,” would instead be prosecuted as two separate offenses.  The advantages of breaking the crime into its constituent parts are as follows:

(1)               Clarity.  Burglary is a composite crime consisting of unlawful entry and an additional offense (usually theft).  By breaking the offense into its component parts it is easier to identify each element of the prohibited behavior.

(2)               Decreased risk of charging a defendant more than once for the same set of culpable actions.  In a criminal code that retains burglary as a separate offense, there is a risk that a person who, for instance, enters a dwelling and steals an item could be charged with theft, criminal trespass, and burglary.  The Code eliminates the possibility of this kind of injustice by allowing prosecutions for only theft and criminal trespass.

(3)               Flexible grading that corresponds more closely to the severity of the underlying offense.  The grading of theft varies with the value of the stolen property.  The grading of criminal trespass varies with the type of property entered without license or consent.  Because a composite burglary offense would have only one grading scheme, prosecutors and courts necessarily have more grading flexibility when they can separately charge theft and trespassing.  This greater grading flexibility generates punishments that better parallel the culpability and dangerousness demonstrated by the defendant’s conduct.

This separation of burglary into the underlying offenses of theft and trespass is supported by the understanding of burglary in Islamic law.  Mohamed El-Awa notes that the majority of jurists concur that the hadd punishment for theft will only occur when it meets the minimum value and has been taken from a “place of custody” (al-hirz), thereby recognizing both elements of theft and trespass.  Islamic law determines hirz on the basis of custom (‘urf) and “can change from one locality to another and from one time to another;”[4] hence the Maldivian definition of private property, and the Code’s definition of trespass, would control.   

Corresponding Provision(s):  Maldivian Constitution (2008) § 24; Rules Relating to the Conduct of Judicial Proceedings, Provision 67.

Comment:

Generally.  This Section defines the offense of unlawful eavesdropping or surveillance, prohibiting (a) installation or use of surveillance/eavesdropping equipment on the property or inside the premises of another, (b) use of such equipment to surveil or eavesdrop on another person in a private place, and (c) use of any device that intercepts, records, amplifies, or broadcasts any part of an electronic or oral communication.  It should be noted that a person must act with the purpose of surveilling or eavesdropping, and without the knowledge or permission of the victim.

 A person commits an offense under Subsection 231(a)(1) if, with the purpose of eavesdropping or surveilling, and without the consent of the subject, surveils or eavesdrops on another person in a private place or under circumstances in which the other person has a reasonable expectation of privacy.  The requirement that the person act with the purpose of eavesdropping or surveilling may seem redundant, but it protects those who install and maintain surveillance/eavesdropping equipment for perfectly legitimate reasons (e.g., in elevators or banks).  Such professional installers know that their actions will facilitate surveillance/eavesdropping, but it is not their conscious object to surveil/eavesdrop.  The requirement that the subject not consent to the surveillance/eavesdropping is also important.  The media often surveil and eavesdrop on celebrities and politicians; when these people consent to the surveillance/eavesdropping, the justification for punishment under this Section disappears.  (Such consent may be express or implied.)  Note that Subsection (a)(1) criminalizes surveillance/eavesdropping on another in a private place, even if no device is used.  Where appropriate, the defendant could be charged under this Section, as well as under Section 230 (Criminal Trespass).

 Assuming a purpose to surveil/eavesdrop, and the subject’s lack of knowledge and refusal to grant permission, Subsection (a)(2) prohibits use of any device that intercepts, records, amplifies, or broadcasts any part of an electronic or oral communication occurring on the property or inside the premises of another.  Subsection (a)(2) will most commonly cover the interception of phone communications through wiretapping.  Also, Subsection (a)(2) is intended to criminalize the interception of any part of a communication, whether the part be the contents of the communication or merely data relating to the identity of the sender or receiver.

 Subsection (b) provides that if a person is informed that his communication may be intercepted or recorded, he is deemed to have consented to subsequent interception or recording, so long as any subsequent interception, recording, disclosure, or other use of his communication that falls within the scope of the notice.  Common cases covered by this Subsection include service calls where the caller is informed that his call may be recorded, and messages left on answering machines.  The phrase “within the scope of the notice” is important.  Consider the common case of a service call where the caller is informed that his call may be recorded.  The notice given in the typical call says that the call is recorded for purposes of quality control.  In such a case, it would be an offense to disclose or use information gleaned from the call for any purpose other than quality control.

 Subsection (c) provides three further cases in which intercepting or recording a communication is not an offense.  Subsection (c)(1) provides that it is not an offense for an employee of a common carrier to intercept or record communications in the ordinary course of the common carrier’s business.  The key language here is “in the ordinary course of such common carrier’s business.”  Examples of interception or recording in the ordinary course of business include interception or recording for billing purposes, for internal research purposes, or even pursuant to a criminal subpoena.  Other instances of interception or recording generally should be considered outside the ordinary course of business.  

Subsection (c)(2) provides that a person may intercept or record communications that he is a party to, where he acts in good faith against wrongdoing and reasonably believes that the intercepted or recorded communications constitute evidence of an offense.  The key word in Subsection (c)(2) is “reasonably.”  Under normal circumstances, it is not reasonable for a telemarketer to believe that his customer has committed an offense.  On the other hand, it is permissible for a person to record or intercept communications of another person who has announced his intent to commit a crime in the near future, because it is reasonable to believe that communications from the person who has announced his criminal intent constitute evidence of an offense.

Subsection (c)(3) provides that it is not an offense for a law officer authorized by the Minister of Home Affairs or Defense to intercept or record communications.   

Subsection (d) defines the term “communication.”

Subsection (e) grades this offense as a Class 5 felony. This matches the penalty for trespass in a dwelling, highly secured premises, or dangerous premises so marked or signed under Section 230(c)(1).  This grading reflects the gravity of an intrusion into privacy, since the right to privacy in communications is protected by the Maldivian Constitution (2008).

Relation to other laws.  This Section implements the guarantee of the Maldivian Constitution (2008) § 24 that states: “Everyone has the right to respect for his private and family life, his home and his private communications. Every person must respect these rights with resect to others.”[5]  This Section also slightly revises Provision 67 of the Rules Relating to the Conduct of Judicial Proceedings, which criminalizes unauthorized invasions of privacy by government officials.  Unlike Provision 67, liability in the Code is not limited to government officials.  Any person may be charged under this Section.  This change was made because the objective of this Section, and presumably that of the cited Maldivian constitutional provision, is to prevent invasion of privacy regardless of whether the invader is a member of the government.

There is general support for this in Islamic law, including a Prophetic hadith that promises severe punishment for those who “listen clandestinely to people’s conversation against their wishes.”[6]

Corresponding Provision(s):  Maldivian Constitution (2008) § 24; Rules Relating to the Conduct of Judicial Proceedings, Provision 67.

Comment:

Generally.  This Section defines the offense of accessing, without authorization, private written communications or other information.  This offense complements Section 231’s prohibition of unlawful eavesdropping.

Subsection (a) prohibits the acquisition of highly secured or private information knowing that he has no license or authority to do so.  The term “information” should be construed expansively to include physical documents, electronic data, and communications of any kind, among other things.  Information need not be tangible.

Subsection (b) provides an exception in cases where the unauthorized acquisition of information is intended to expose wrongdoing.  The intention must be in good faith, thus the person must actually believe that wrongdoing is occurring.  Simply seeking out information in the hopes of discovering wrongdoing is not enough to invoke this exception’s protection.  The word “wrongdoing” in Subsection (b)(2) only refers to unlawful behavior within the scope of the Code.

Subsection (c)(1) defines “highly secured information” as information that is actively secured against unauthorized access.  Examples of such measures include encryption, placing the information in a safe or other locked area, and hiding or disguising the information to make it difficult to find.  Unlawful acquisition of highly secured information is graded higher, a Class 5 felony, because it typically involves a greater invasion of privacy. Subsection (c)(2) defines “private information.”

 Relation to other laws.  This Section implements the right of privacy enshrined in § 24 of the Maldivian Constitution (2008).  However, it expands the liability to all persons rather than only governmental actors (as is the case in The Rules Relating to the Conduct of Judicial Proceedings, Provision 67).  The reason for this expansion is to prohibit this behavior among both governmental and non-governmental actors, which § 24 of the Maldivian Constitution (2008) appears to require.

Corresponding Provision(s):  Maldivian Constitution (2008) § 24.

Comment:

 Generally.  This Section prohibits a person from disclosing or using information if he knows it has been obtained in violation of Sections 231 or 232.  It extends the Code’s protection of private information and communications by assuring that a person who knowingly passes along unlawfully obtained information will not escape liability. 

 To be guilty under this Section a person must know that the information in question was unlawfully obtained.  For instance, if unlawfully acquired information is given to a reporter who then publishes it, the reporter is not guilty unless he knew the information was unlawfully obtained.  The person who gave the information to the reporter would properly be charged under this Section, so long as he knew the information was unlawfully obtained. 

            If a person both acquires and discloses information in violation of multiple sections under this Chapter, he may be charged and punished under all sections that apply.

 The grading for this Section varies from Section 232.  The acquisition of “highly secured information” contains an element of trespass since it is “secured against unauthorized access.”  Hence, the punishment for acquiring “highly secured information” is graded higher than simply disclosing it because acquisition in this context is a more invasive criminal act.

 Relation to other laws.  This Section completes the implementation of the constitutional guarantee of privacy in § 24 of the Maldivian Constitution (2008) by criminalizing the disclosure or use of unlawfully acquired private information.

Comment:

Generally.  This Section collects defined terms used in Chapter 230 and provides crossreferences to the sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 230’s defined terms and Maldivian law, refer to the commentary for the section in which each term is initially defined.

This Chapter punishes culpable fraudulent conduct.  The harm in fraud is the defendant’s culpable inducement of detrimental reliance on the part of the victim.  From the victim’s point of view, this Chapter protects his right to assume that the representations of others are truthful and made in good faith.

The Code generally follows the elements contained within Maldivian law.  However, at certain points the Code expands the scope of the law to account for the possibility of new methods and techniques in committing similar harms.  This expansion was achieved by specifying the underlying harm that the law intends to prevent rather than specifically enumerating the types of activities to be prevented - as is done under prior law.  Support for these changes is found in principles already present in Maldivian law and Islamic law.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 28(m), 90, 91, 92, 94, 95, 96, 97, 98, 99, 100, 107, 125, 88(34) and 88(36); the Law on Copyright and Related Rights, Provision 28; and the Maldives Postal Services Act, Provision 10.

Comment:

Generally.  Section 310 criminalizes forgery and simulating objects of special value.  These offenses aim to protect the authenticity of documents, other writings, and objects of antiquity or other special value.  This offense also covers the production of counterfeit money and other negotiable or valuable instruments.  The use of these documents to commit a theft is criminalized in Section 212 (Theft by Deception).  Forgery and simulation remains an independent offense, however, recognizing that (1) forged writings are often used to accomplish especially far-reaching fraudulent activities, (2) forged objects and simulated objects of special value may cause losses or injuries that are unquantifiable or of a non-pecuniary nature, and (3) beyond the specific theft achieved or attempted, forgery imposes the additional discrete harm of reducing public confidence in the forged item (for example, counterfeiting, which is one form of the Section 310 offense, tends to undermine trust in paper currency and the monetary system).

The grading of the offense differentiates between the type of object forged or simulated.  The rationale behind the grading is that the forgery of certain objects (i.e. money) is likely to cause greater harm than the forgery or simulation of other objects (notices or correspondence.)  Additionally, the forgery of valuable or negotiable instruments may be harder to detect, as they represent only value, as opposed to other writings, which may have particular characteristics that make them easy to identify as fakes before they cause further harm.  

Subsection (a)(1) is directed at the use of forged writings or simulated objects where the use does not cause a pecuniary loss that would otherwise be punishable under Section 212.  This provision could include the use of forged writings or simulated objects that result in reputational harm, the assertion of false scientific theory, or other intangible injuries.

Subsection (a)(2) is directed at the simulation of objects of special value.  This provision addresses situations where an object is altered such that it falsely purports to be an antiquity. 

This provision also addresses situations where a painting or cultural writing purports to be written by an author, but it is not.  However, this provision does not overlap with Section (a)(1) – a person has either committed forgery or simulated an object of special value. 

Subsection (a)(3) is directed specifically at the forgery of writings.  This offense is committed whenever one creates or issues an entirely new writing, or executes, authenticates, or transfers an existing writing such that it purports to be the act of another, or purports to be numbered or authenticated in a way that it is not.  The alteration of an existing writing that has already been executed or authenticated is covered by Section 311. 

 Subsection (b) defines a writing as any symbol of value, right, privilege, or identification, regardless of medium.  It is irrelevant whether the writing exists in physical form or electronic form.  This may include but is not limited to printing, electronically recorded data, or any other method of recording information, money, coins, stamps, tokens, seals, credit cards, badges, trademarks, digital signatures or other encrypted identifiers or electronic mail routing information.

Subsection (c) provides a grading scheme for Section 310.  Subsection (c)(1)(A) punishes as a Class 4 felony the forgery of any instrument that does or may create, show, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status.  Subsection (c)(1)(B) punishes as a Class 4 felony the forgery of any writing issued or received by the government.  Subsection (c)(1)’s range of prohibited forgeries therefore includes, but is not limited to: currency (coin or paper), bonds, stocks and other securities, commercial letters of credit, and other instruments that could be easily exchanged on sight for other valuable instruments or goods. 

Subsection (c)(2) notes that all other forgeries and simulations are punished as Class 5 felonies.  This class of writings and objects would include common letters, private notices or articles, and false antiquities, paintings, or other cultural objects.

 Relation to other laws.  This Section finds support in Provision 28 of the Law on Copyright and Related Rights as well as Provisions 28(m), 90, 91, 94, 96, 97, 98, 99, and 105 of the prior Penal Code.  Provision 10 of the Maldives Postal Services Act, which makes it an offense to forge a postage stamp, is also codified by this Section of the Code.  However, the Code makes a few significant revisions to these laws.

 First, this Section eliminates Provision 95 which imposes an affirmative duty on the possessor of counterfeit money to subsequently notify those persons to whom he may have passed the money before himself discovering it was counterfeit.  This change recognizes the fact that counterfeit money may pass to many people after it is introduced into the market, and that it is possible for many people to have passed on counterfeit money without knowing it was counterfeit.  It is impractical and unfair to require a person, under the threat of criminal prosecution, to investigate and track the subsequent path of counterfeit money; this is a function more suitably performed by law enforcement.  

Second, this Section also avoids punishing someone for failing to notify another of a fact that he himself does not know.  This revision is supported by the general Islamic principle that “if a man does not know the deed which he performs is forbidden, no punishment should be inflicted on him.”[7]      

Third, the Code does not encompass Provisions 92 and 93, which punish possession of materials used in the production of counterfeit materials.  This change was made because it is more appropriate to incorporate the prohibition of these acts into laws regulating the production of money.  

Fourth, additional material on non-counterfeiting forgery, simulation, and use was added because criminalization of non-currency forgery and simulation permits greater reliance on documents and non-currency negotiable instruments.  Criminalization of the knowing use of forged documents ensures that persons obtaining those documents to injure or fraudulently obtain benefits are punished the same as those who produce the documents.

Islamic contract law supports this Section in that it prohibits fraudulent sales.[8]  However, the State has traditionally exercised its police power under hisba jurisdiction to prevent fraud and deceptive practices of various kinds in the marketplace.[9]  In addition, the offenses defined in this Chapter are generally consistent with the harms sought to be prevented by the muhtasib (market inspector who exercises hisba jurisdiction).  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(35) and 92; and the Maldives Postal Services Act, Provision 11.

Comment:                               

Generally.  This offense criminalizes both tampering with a writing, record, or device and inviting reliance on writings, records, and devices that one knows to have been tampered with.  As applied to “writings,” Section 311 also complements Section 310, and reaches conduct that is not forgery because the defendant either tampers with or alters a writing already created, executed, or authenticated.  

Subsection (a)(1) defines the culpability level for offense.  The defendant’s purpose to deceive or conceal wrongdoing is a key element of the offense.  One who tampers with a document in good faith, or for purposes other than deceit or concealment of wrongdoing cannot be guilty under Section 311.  Furthermore, tampering with a document to conceal acts that are not “wrongdoing” (i.e., a criminal offense) is not punishable under this Section.  This exception is included to protect the privacy of persons who are engaging in acts that they may not want publicly known, and to protect commercial negotiations where confidentiality is a key issue.

Subsection (a)(2) defines the conduct for the offense as the alteration, destruction, removal, or concealment of a writing, record, or object.  This definition may include situations where a writing, record, or object is partially destroyed, or simply obscured from public detection.  The routine filing of documents ordinarily is not punished because it does not constitute alteration, destruction, removal, or concealment, nor is it undertaken for the purpose of deceit or concealing any wrongdoing.  The creation, issuance, authentication, or execution of documents is punished under Section 310.

Subsection 311(a)(3) exists only to note that there are situations where tampering may be authorized or due to some reason.  However, authorization must be lawful and the reasoning should be legitimate, not arbitrary.  Furthermore, the tampering  must not be used to violate other provisions of Maldivian law.

Relation to other laws.  Section 311 essentially criminalizes tampering with documents whose creation is punished under Section 310.  This Section makes a small addition to prior law under Provision 92, which is limited to criminalizing activities involved in counterfeiting, by also punishing offenses which are not counterfeiting, but are sufficiently related to it.  The reason for this change is that alteration or destruction of non-monetary documents can inflict serious pecuniary and non-pecuniary damages on others, or may allow others to obtain benefits to which they are not entitled.  Furthermore, the criminalization of non-currency tampering is important because it allows people to rely on documents without questioning their authenticity.

Provision 11 of the Maldives Postal Services Act, which makes it an offense to remove or tamper with a postage stamp, is also codified by this Section of the Code.

Support for this change is also found under Islamic law, wherein fraudulent sales are generally prohibited.[10]  Further explanation of this support can be found in the commentary to Section 310.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 79, 88(40), 121(c); Securities Act, Provision 22, 23 and 24.

Comment:

Generally.  This offense criminalizes the unauthorized impersonation of others.  Impersonation, like other conduct prohibited in Chapter 310, is often used to achieve theft. 

Section 312 serves three functions that complement Chapter 210’s prohibitions against theft. 

First, Section 312(a)(2)(A) serves to punish harm to impersonated persons, such as injury to reputation, that theft offenses do not address.  Section 312(a)(2)(A) also criminalizes conduct that may not constitute theft, such as an underage person’s pretending to be of age (by claiming to be either a real or fictitious adult) for the purpose of voting.  Finally, where one impersonates another to steal property whose value is low or difficult to determine, Section 312(a)(2)(A) will allow a prosecution.  

Note that it is not a defense to liability under Section 312 that the impersonated person cannot be identified.  Representing one’s self as a non-existent person, or a person who cannot be identified is as blameworthy as falsely representing one’s self as another real person.

Second, Section 312(a)(2)(B) and (C) addresses crimes that are incidental to impersonation, such as the production, sale, or purchase of false identities.  This ensures that individuals can be prosecuted for impersonation-related crimes before they actually engage in the impersonation or theft.

Third, Section 312(a)(1)(C) bars a person from representing that he is authorized to exercise official or legislative authority.  Subsection (a)(1)(C) addresses cases where people impersonate police officers, public safety officers, or other government officials.  This ensures that individuals who falsely assert official authority are punished, even though they may not cause a direct injury to any specific person.

In general, Section 312(a)(1) qualifies the behavior mentioned in (a)(2).  In particular, (a)(1) notes that in order for an offense to exist there must be reckless disregard for whether the conduct would cause harm to another, accrue benefit that is not entitled to or cause others to believe some form of authority exists for the behavior when it does not.

Relation to other laws.  This Section is based on Provisions 79, 88(34), and 88(40) of the prior Penal Code.  There are a few significant revisions however.

First, this Section slightly revises Provision 79 by expanding the penalty to all impersonations, not simply cases where the person is fraudulently claiming Islamic legal authority.  There is a strong public policy argument behind this expansion, as identity fraud causes serious harm to the individual whose identity is stolen as well as to society at large in that the national economy is jeopardized by such crimes.  

Second, this Section expands the offense by punishing based on the resulting harm as opposed to simply cases where the victim is a legal or judicial authority.  This change recognizes that identity fraud can adversely affect any member of society.  The changes to this Section are broadly supported by Islamic law prohibition on “speaking of falsehoods.”[11]  

 Third, this Section on trafficking in stolen identities partially replaces Provision 88(34) of the prior Penal Code (1966) by expanding punishment for trafficking in identities beyond cases involving false identity cards.  This change was incorporated to accommodate the variety of methods that may be employed to steal other’s identities.  The conduct prohibited by Provision 88(40) of the prior Code is also encompassed by this Section.

In addition, this Section encompasses specific offenses found in other Provisions of prior Maldivian law.  First, this Section parallels the specific offense of impersonating another in an election mentioned in Provision 121(c) of the prior Code.  Second, this Section also includes fraudulent acquisition of a dealer, dealer’s representative, or investment advisor’s license outlined under the Securities Act’s Provisions 23, 24, and 25.

Corresponding Provision(s):  Consumer Protection Act, Provisions 8, 88(14) and 103; Securities Act, Provisions 50, 51, 52 and 53.

Comment:

Generally.  This offense criminalizes dishonest dealing in commercial transactions.  Section 313 applies to a whole host of dishonest commercial practices.  For example, the following practices would be prohibited under Section 313:  making a false or misleading written statement to obtain property or credit, to sell securities, or in any advertisement; using a false weight or measure, or any other device for falsely determining or recording any quality or quantity of a commodity to be sold; selling or delivering less than the represented quantity of any commodity or service; taking more than the represented quantity of any commodity or service when the buyer furnishes the weight or measure; or selling adulterated or mislabeled commodities.  The language of this offense, however, is not limited to these practices, and involves any practice, which involves deception related to commerce.  An “established commercial practice” in Subsection (a)(2) is a practice derived from custom or law.  

 The minimum culpability level required for supplying false or misleading information is recklessness.  This level was chosen because a person who acts negligently in supplying false information is unaware of the risk that the information is false, and thus should not be held liable.  However, to require knowledge would exempt from liability any person who knows of a substantial risk that he is supplying false information and chooses to disregard it.

The information supplied must be materially false or misleading.  This requirement ensures that a person does not incur liability for the representation of minor inaccuracies.

The offense is graded a Class 1 misdemeanor in accordance with prior Maldivian law’s punishment of similar deceptive practices under the Consumer Protection Act, § 8.

Relation to other laws.  This Section is similar to several provisions of Maldivian law.

First, this Section is similar to the Consumer Protection Act, § 8.  However, there is a difference between this Code and prior law in that § 8 enumerates specific prohibited practices, whereas Section 313 generally criminalizes all deceptive practices.  The reason for this change is to account for all practices that may cause similar harm, but which are not currently known or are not enumerated.  For instance, this Section incorporates Provision 103, which prohibits adulterating food and drink for the purposes of commercial profit.  A broader criminalization more effectively captures all deceptive behavior, which would be unwieldy to capture by enumeration.    

Second, this Section also includes Provisions 50 through 53 of the Securities Act, which pertain to deceptive practices in the securities context.  These Provisions prohibit fraudulent inducements to invest, manipulation of the stock market, false statements and distribution of misleading documents in this context.

Third, this Section covers aspects of Provision 88(14) of the prior Penal Code (1966) but is not broad enough to cover Provision 88(14)’s criminalization of purchasing at unreasonable prices.  Purchasing and selling at unreasonable prices may be prosecuted under this Section only if the offender recklessly supplies materially false or misleading information; or knowingly deceives by acting contrary to established commercial practice.  Evidentiary reasons make it preferable to limit the offense in this manner.

This Section also has support in Islamic law.  If a seller knows of a defect in an article he must disclose it based on the Prophetic tradition that:  “He who cheats us is not one of us.”[12]  Islamic law also prohibits “taking people’s property through falsehood” and Ahmad b. Naqib alMisri has condemned “the cheater or adulterer of trade goods…the person who stints when weighing or measuring out goods…and the merchant who tells the buyer that the merchandise cost more than it did” as examples of such conduct.[13]  The commentary to Section 310 expands on this point.

Corresponding Provision(s):  None

Comment:

Generally.  This offense criminalizes bribes designed to induce breaches of professional duties owed by persons in positions of trust.  Section 314(a) applies to bribes accepted or sought by persons owing a duty of fidelity to others.  This includes, but is not limited to, agents, fiduciaries, and professional advisors.  Section 314(b) criminalizes paying, conferring or offering bribes prohibited by Section 314(a).  Section 314(c) applies to bribes accepted or sought by individuals who pretend to the public to be disinterested in recommending, valuing, or reviewing commodities or services.  

The language of this Section is written explicitly to limit the offense to truly blameworthy conduct.  Section 314(a) prescribes a culpability requirement of knowledge as to all of the objective elements of the offense.  This requirement limits the scope of the offense by preventing an individual who should have known, but didn’t, from assuming liability.  The individual who isn’t aware is not intended to fall within the scope of liability for this Section because he does not satisfy the requisite culpability to be considered blameworthy for the offense.  It is the individual who knows of or intends to induce breaches of professional duties owed by persons in positions of special trust that Section 314 seeks to punish.

Section 314(a) requires that the defendant be subject to a duty of fidelity, but includes a list that encompasses a broad range of professional capacities.  According to the list provided, commercial bribery covers agents, arbitrators, directors, employees, fiduciaries, partners, professional advisors, and officers.  This list is intended to encompass a broad range of professionals, as all are capable of blameworthiness under this Section.

Section 314(b) criminalizes conferring, offering, or agreeing to confer a bribe prohibited by Section 314(a).  This Section is similar in scope to 314(a), but applies to the individual on the other end of the bargain.

Section 314(c) addresses an individual who pretends to act disinterestedly in selecting, valuing, or reviewing something, but seeks or accepts a benefit to influence his selection, valuation or review.  The Section is explicitly limited to an individual who knowingly holds himself out to the public as one who makes “disinterested selection, appraisal or criticism,” but who actually is knowingly acting based upon the receipt of a benefit.  This sort of dishonesty is blameworthy because it undermines the public’s confidence in honest advice, appraisal and criticism.  Examples of this type of deception are false restaurant recommendations and misleading appraisals of personal property.    

Section 314(d) grades this offense as a Class 4 felony.

Relation to other laws.  This Section finds support in the Consumer Protection Act, § 2, which provides that no consumer shall be discriminated against in the course of selling goods or services.  Commercial bribery and the breach of one’s duty to act disinterestedly result in discrimination against consumers because consumers who do not pay bribes are disadvantaged relative to consumers who do pay bribes or arrange for a party to act disinterestedly.  As such, this section comports with prior Maldivian law.

Islamic law lends further support to this Section.  There is a Prophetic hadith which states: “cursed is the one who bribes and the one who takes a bribe.”[14]  Ibn Hajar Haytami lists “taking a bribe for falsehood; or being an intermediary between the persons giving and accepting it” as an offense.  In addition, he mentions the example of an official bribe by listing “a judge accepting a gift for having interceded for one of the litigants” as an offense.[15]  Mohamed ElAwa cites the following Qur’anic verse in support of the prohibition against bribery: “Consume not your property among yourselves in vanity, neither proffer it to the judge, that you may sinfully consume a portion of other men’s property intentionally.”[16] 

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 121(c).

Comment:

Generally.  This Section criminalizes conduct that interferes with, and impairs confidence in, government bidding and contests.  The purpose of this Section is to protect the integrity of governmental allocation of contracts and to encourage the conservation of public resources, but it applies with equal force to publicly exhibited contests or exhibitions.  Contracts obtained by any means other than through independent non-collusive submission of bids or offers by individual contractors and suppliers are inherently deceptive and may lead to both higher costs and poorer quality of work in the execution of contracts.  

Section 315(a)(1)’s culpability requirement is high; the defendant must act with the purpose of preventing a publicly exhibited contest or exhibition from being conducted in accordance with the rules and usages purporting to govern it.  Section 315(a)(1)(A)-(C) detail the ways in which a defendant may go about corrupting a bid – through payment, threat, or interference.

Section 315(a)(2) requires that a defendant knowingly solicit or accept a benefit, and act with the purpose of bribing, threatening, tampering, or otherwise disrupting the legitimate nature of a publicly exhibited contest or exhibition.  

A defendant is similarly liable under Section 315(a)(3) if he knows the conduct he is engaged in violates the laws governing a bid or contest.  Requiring the State to prove knowledge promotes the legitimacy of the public bidding process by creating liability for individuals who may not have intended to commit the fraud, but become aware that by their conduct they are in fact committing this offense.  It is in the interest of society to prevent such individuals from delegitimizing the public bidding process.  At the same time, requiring proof of knowledge protects individuals who only recklessly disregard the corrupt implications of their actions.

Section 315(a)(4) explicitly criminalizes corruption in publicly exhibited contests, including sporting events.  This Section is designed to discourage gambling fraud and to protect the integrity of legitimate public contests.  The term “publicly exhibited contest” includes, but is not limited to, sporting events, art and beauty competitions, lotteries, raffles, and television gaming.  Beyond addressing the threat of gambling fraud, this broad definition is necessary to prevent the deception of the public and maintain its confidence in the integrity and legitimacy of public contests.  The Section has two parts, requiring that a defendant knowingly participate in a public contest (Section 315(a)(3)(A)) and that the defendant know of the fraudulent nature of the contest (Section 315(a)(4)(A)).  By requiring knowledge as to both of these elements, this Subsection assures that an individual acts with sufficient culpability and does not merely happen to be an innocent participant in a fraudulent contest.  At the same time, requiring proof of knowledge permits the conviction of those who assist others in deceiving the public by participating in a rigged contest, even though they may not satisfy the requirements of accomplice liability under Section 30 of this Code.  

Section 315(b)’s definition of “benefit” is broad and encompasses more than just money and material goods.  Also included in this definition are advantages, such as preference in a contracting scheme, or the opportunity to purchase goods or services at a price lower than normal.  Compensation may also be non-pecuniary.  For example, a promise to arrange a marriage may be a “benefit,” as the term is defined in this Section.

Section 315(c) grades arranging a rigged contest as a Class 4 felony and participating in a rigged contest as a Class 5 felony.  The difference between the grading of these sets of offenses is derived from the further reaching implications of Subsections 315(a)(1)-(3).  These Subsections involve the prevention of fair competition for corporations, and are judged as more heinous offenses.  Unlike 315(a)(4), these offenses not only compromise legitimacy and integrity in the eyes of the public, but also have drastic economic implications that directly impact individuals’ livelihoods.

Relation to other laws.  The precedent for this Section in the prior Code (1966) is found in Provision 121(c).  This provision criminalizes voting more than once in an election or arranging such behavior.  As explained in the commentary to Section 314, the principles contained in this Section are also analogous to those underlying the Consumer Protection Act.  Rigging a contest or public bid results in discrimination against other consumers because consumers not benefiting from the rigging are treated unequally in comparison to those who do benefit.  As such, the provision embodies the principles underlying the Consumer Protection Act.  Islamic law expressly prohibits bid-rigging (najsh).[17]  

Corresponding Provision(s):  None.

Comment:

Generally.  This offense criminalizes dealing with property for the purpose of hindering a secured creditor’s interest therein.  The Section will often apply to debtors who fraudulently deal with collateral in their rightful possession.  This Section differentiates from Chapters 210 and 220 in that it addresses security interests for those cases in which a requirement of theft or property damage is not satisfied, such as when the debtor does not appropriate or damage the collateral.  

Section 316 is comprehensive in criminalizing any effort to defraud secured creditors.  This Section covers any property that is subject to a secured interest, and criminalizes dealing with collateral for the purpose of hindering enforcement of a security interest.  This Section facilitates broad liability for those who seek to impair security interests.  This liability includes, but is not limited to, the transfer, destruction, removal, concealment or encumbering of collateral. Section 316(b) grades the offense as a Class 1 misdemeanor.  

Relation to other laws.  There is support for this Section in the Consumer Protection Act, Provision 8, which prohibits the sale of goods by misrepresentation.  In particular, Provision 8(g) prohibits the sale of goods by advertising that goods were available, when in fact they are not. 

This provision of the prior law is somewhat analogous to defrauding a secured creditor, in that a debtor, who has bought credit from a secured creditor, would be advertising the presence of collateral when in fact it did not exist.  While the provisions are not precisely parallel, sufficient similarities exist between the laws that the law simply extends the substance of the protection afforded purchasers to sellers as well.

In addition, there is a strong public policy argument for this Section in that a successful society has need for such a provision because it creates guarantees for lenders that allow the investment necessary for a stable and growing economy.  

For Islamic legal support for this Section refer to Islamic legal principles cited in previous sections of this Chapter, specifically Sections 311, 313, and 314. 

Corresponding Provision(s):  None

Comment:

Generally.  This offense criminalizes fraudulent conduct by one who knows that certain proceedings for the benefit of creditors, such as a liquidation proceeding or a proceeding seeking the appointment of a receiver, have been or are about to be instituted.

Section 317(a)(1) protects a creditor’s interests by prohibiting a debtor’s fraudulent conveyance of even unencumbered property, but requires that proceedings for the benefit of creditors be pending or imminent.  By requiring the defendant’s knowledge as to this objective element, this Section ensures that the defendant’s conduct is sufficiently blameworthy to warrant criminal sanctions.  Criminalizing the ordinarily legal act of alienating one’s own unencumbered property simply because one engages in that act based on what is considered a bad motivation comes close to punishing mere thoughts.

The conduct prohibited by Section 317(a)(2) and 317(a)(3) is detrimental because it interferes with the prompt and fair administration of an insolvent estate.  Section 317(a)(2), specifically, prohibits falsifying writings relating to property that one knows is, or is about to be, subject to insolvency proceedings.  Section 317(a)(3), specifically, criminalizes misrepresenting or refusing to disclose information legally required to be given to a receiver.  

The offense is graded in Section 317(b) as a Class 1 misdemeanor.  This classification is acceptable because of the fact that Section 317(a) has the exacting standard of knowledge that insolvency proceedings are pending or imminent.

Relation to other laws.  This Section has no counterpart in Maldivian law.  However, this Section is necessary to affect Provisions 75 to 93 of the Maldivian Companies Act, which provides for the winding up of companies.  These procedures could not be affected if people are able to interfere with the administration of an insolvent estate.  As such, the principles underlying this Section are merely effective or protective of those contained in the Maldivian Companies Act.

Furthermore, this Section is supported by Islamic law, wherein fraud by a debtor or other insolvent person is potentially punishable by imprisonment.[18]

Corresponding Provision(s):  None

Comment:

Generally.  This offense criminalizes receiving deposits and other investments in failing financial institutions.  This offense is similar to Section 212, Theft by Deception, insofar as receiving a deposit with knowledge that insolvency is imminent will ordinarily amount to an implicit misrepresentation as to the institution’s ability to pay the depositor on demand.  However, Section 318 differs from Section 212 in that it does not require proof that the offender obtained the property by such deception.

            The word “investment” in Subsection (a)(1) should be construed broadly.

Section 318(a)(2) specifically requires that the defendant know that the institution is about to suspend operations or go into receivership or reorganization, rather than requiring mere knowledge of insolvency.  Insolvency is a vague term that lacks a specific definition in Maldivian precedent, and 318(a)(2)’s specificity dispels any ambiguity in this regard.

Section 318(a)(3) requires that the defendant be reckless as to the possibility that the person making the payment is unaware of the serious financial difficulties of the institution.  This language is included to prevent implicit misrepresentation as to the institution’s ability to meet its deposit obligation, and holds the institution liable in cases where it is reckless as to the possibility that a depositor is unaware of the institution’s “serious financial difficulties.”  The phrase “serious financial difficulties” should not be construed to include every business downturn that a financial institution experiences; it should be limited to those difficulties that substantially threaten the survival of the institution in its present form.

Section 318(b) defines “Financial Institution” according to the definition given in Section 215(b)(1).

Section 318(c) grades this offense as a Class 1 misdemeanor.

Relation to other laws.  As with Section 316, this provision substantively reflects the Maldivian Consumer Protection Act.  In the case of Section 316, the seller of the services would be a banker providing depositary services.  To take deposits when one knows that his ability to provide depositary services is impaired represents a practice prohibited under the Consumer Protection Act, Provision 8.

For Islamic legal support, refer to the commentary for previous sections of this Chapter, specifically Sections 311, 313, and 314.

Corresponding Provision(s):  None

Comment:

Generally.  This offense criminalizes selling the right to participate in a pyramid sales scheme.  These schemes are criminalized because they are inherently deceptive.  When the market inevitably becomes saturated, participants at the end of the chain lose their investment and are led to potential financial ruin.

The language of Section 319(a) explicitly prohibits only the knowing sale of a pyramid scheme, as the attempt or offer to sell are already covered by Section 80, Inchoate offenses.  

Section 319(b) defines the term “Pyramid Sales Scheme.”  The inducement of others to invest any value in an inevitably fruitless venture that solely benefits those in the planning stage of the venture upon the false pretense of success deserves recognition as a punishable offense.

For example, A sells to B the opportunity to sell item X, a portion of the profit for which will return to A.  In addition, A encourages B to sell the same opportunity to C, with a portion of the profit from C returning to both A and B.  This chain is encouraged ad infinitum, and those involved in the planning stage create wealth at the expense of those who become involved further down the chain.  The individuals at the end of the chain (Z) are defrauded, investing in a market which has already been saturated.  Z ends up subsidizing the continuation of a false enterprise, while A (the planner) realizes a great profit and assumes no risk or liability.

Section 319(b)(1) mentions “anything of value” which should be construed broadly to include the societal and cultural context of the Maldives.

Section 319(c) grades the offense as a Class 1 misdemeanor.

Relation to other laws.  This Section has no counterpart in Maldivian law.  However, the sale of participation in a pyramid scheme normally involves “falsely stat[ing] or represent[ing] or express[ing] in a manner that could cause a mistaken belief, the benefits available under a warranty or guarantee of goods.”  Such practices are prohibited under the Consumer Protection Act, Provision 8.  As such, Section 319 simply codifies this principle with respect to pyramid schemes.

For Islamic legal support, refer to the commentary for previous sections of this Chapter, specifically Sections 311, 313, and 314.

Comment:

Generally.   This Section collects defined terms used in Chapter 310 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between Chapter 310’s defined terms and Maldivian law, refer to the commentary for the section in which each term is initially defined. 

This Chapter criminalizes certain conduct within the context of familial and other interpersonal relationships.  The Chapter is intended to reflect society’s need for social order and the necessity of penalizing conduct harmful to individuals and families.  Section 410 penalizes unlawful marriages.  Sections 411 and 412 penalize certain sexual conduct.  Sections 413 and 415 penalize wrongful acts and omissions with respect to the actor’s dependents.  Section 414 penalizes manipulation of incompetent persons.  Section 416 penalizes abortion.  

Certain provisions of Maldivian law have been deemed inappropriate for inclusion within the criminal code and are not reflected as Sections within this Chapter.  In most instances, these provisions are simply beyond the scope of the Penal Code and would more properly be categorized as civil law.  In other instances, the provision from prior law has purposely not been included because of its inherent conflict with other existing law.  For example, the Family Law Act 2000 (No.: 4/2000) § 68 specifically prohibits the failure to volunteer information to the proper authorities regarding offenses under the Act.  This provision is excluded because Maldivian law as a whole does not involve a general requirement of this type.  Other provisions from existing Maldivian law which have not been included in this Code are addressed by the Commentary under the relevant Sections.

Corresponding Provision(s):  Family Law Act 2000 (No.: 4/2000) §65, §70.6, §70.7 and § 70.12.

Comment: 

 Generally.  This Section penalizes certain forms of bigamy and polygamy.  If an individual knows his or her marriage is unlawful, fornication between the two unlawfully married parties is illegal and subject to punishment under Section 411.

 Subsection (a)(1) limits the total number of women a man can marry at four.  In cases where a man is married to four women, but divorcing one of them, he must wait till after the post-marital waiting period (iddah) of that wife has passed.  This post-marital waiting period is defined in Subsection (b)(1). 

Subsection (a)(2) makes it criminal for a man to marry a sister of one or any of his current wives or of a wife who is in the post-marital waiting period.

Subsection (a)(3) prohibits a woman from marrying anyone during the post-marital waiting period unless she remarries the man she has just been divorced from.

Subsection (a)(4) criminalizes bigamy for women.  

Subsection (a)(5) prohibits a woman from remarrying a man who she has been divorced from three times without having been married and divorced by another man. 

Subsection (a)(6) prohibits a married couple from remarrying if they were divorced due to adultery (lian). 

Subsection (a)(7) criminalizes marriage to close relatives including parents, grandparents, great-grandparents, children, grandchildren, great-grandchildren, siblings, aunts, great-aunts, uncles, great-uncles, nephews, nieces; a person who was nursed by the same woman (milk sibling); or a person who by virtue of marriage has become a relation heretofore specified.  See

Section 413(d) for a definition of “close relative.”

Subsection (a)(8) prohibits same sex marriages.

Subsection (a)(9) prohibits a Muslim woman from marrying a non-Muslim man.

Subsection (a)(10) prohibits a Muslim man from marrying a non-Muslim woman who does not follow a religion with a revealed scripture. Religions with revealed scriptures include Christianity and Judaism, but may also include other faiths.

Subsection (c) grades the offenses in this Section as Class 1 misdemeanors.

Relation to other laws.  This Section relies upon select provisions of the Family Law Act

(2000) to define criminal offenses related to the institution of marriage.  The Family Law Act (2000), however, is more expansive than the Code and prohibits a wide variety of marriage offenses including: marriage between a woman and a non-Muslim man; marriage for the purpose of breaking the deadlock after three consecutive divorces from the same person; providing false information during the solemnization or registration of a marriage; divorcing without the court’s approval; and many other offenses.  Some offenses relating to marriage and divorce have been excluded from the criminal law because under the codification scheme employed these offenses properly fall under civil offenses and will be dealt with in the civil courts.  However, they may not serve as the predicate for a prosecution under Section 411.  

The offenses in Maldivian law relating to marriage and divorce are the following: 

Unlawful Intercourse: Maldives Penal Code (1966), Provisions 88(33), Family Law Act 2000 (No.: 4/2000) § 62, § 64, § 66, §67, §70.3, §70.4, §70.8, §70.9, §70.10, §70.11, §70.13, §70.14, §70.15, §70.16, §70.17, §70.19, §70.20, §70.21, §70.22, §70.23, §70.24, §70.25, §70.26, §70.27, §70.28, §70.29, §70.30 and §70.31.

It should be noted, with regard to Subsection (a)(1), that Maldivian law (Family Law Act 2000 (No.: 4/2000) § 65) requires a man to gain permission from the court prior to marrying an additional spouse.  The Code supports this greater level of transparency in the marital relationship.  This principle is supported by Islamic legal principles that allow requiring the first wife’s consent within the marriage contract.[19]  Furthermore, Subsection (a)(1) limits the number of wives a man can have at four, which is agreed upon by all Islamic legal schools of thought, though there is a preference for only having one wife.  As Ahmad b. Naqib al-Misri notes,  “it is unlawful for a free man to marry more than four women.  It is fitter to confine oneself to just one.”[20]  This is supported by the following Qur’anic verse: in support: “If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you shall not be able to deal justly (with them), then only one.”208

Subsection (a)(4) has a stricter limitation on the number of spouses for women than for men, reflecting Family Law Act 2000 (No.: 4/2000) §70.  Muslim jurists agree upon Subsection (a)(4).[21]  Traditionally, Islamic law does not proscribe criminal punishments for many of these matters, but the Code was amended to reflect the wishes of the People’s Majlis.  Hence, in order to be more consistent with Islamic law, it would be preferable to seek a minimal level of sentencing in these cases and to avoid over-prosecution.

Corresponding Provision(s):  Maldives Penal Code (1966) Provision 88(27); Family Law Act (2000) (No.: 4/2000) § 69; Rules Relating to Conduct of Judicial Proceedings 100 and 173.

Comment: 

 Generally.  This Section criminalizes sexual intercourse which is performed between heterosexual persons who are not lawfully married where the intercourse is witnessed by four witnesses.  It also criminalizes sexual intercourse between individuals of the same sex.  The general rationale informing these laws is that such intercourse promotes social disorder.  Subsections (a)(1) and (a)(2) employ the phrase “engages in” in order to incorporate the notion of free volition.  In other words, a person who has sexual intercourse without knowledge or purpose lacks the requisite intent to commit the offense defined in Section 411.[22]  Thus, a married man who rapes an unmarried woman has himself committed a Class 5 felony under this Section in addition to the offense of sexual assault under Section 131.  The woman, however, would not be guilty of a Class 1 misdemeanor under this Section because she has not “engaged” in sexual relations with the married man, but was rather forced to participate.  Sexual intercourse has the meaning given in Subsection (f).      

Section 411(a) criminalizes intercourse between members of the opposite sex in the cases of adultery and sex outside of marriage.  The grading scheme in Subsection (b) punishes married individuals more harshly than other actors and two unmarried actors less harshly because adultery is considered more detrimental to the social order than sex outside of marriage.  In addition, a married person engaging in intercourse with a person not his spouse is graded more harshly than an unmarried person having intercourse with a person not his spouse because in the first case he is committing a double wrong –both engaging in intercourse outside of wedlock and breaking the bonds of matrimony.  The unmarried person having intercourse outside of wedlock, however, is not violating the marital bond and, as a result, is less severely punished.

 Section 411(a)(2) criminalizes intercourse between members of the same sex.  It should be noted that because the definition of “same-sex intercourse” in Subsection (f)(2) requires “insertion,” Section 411(b) applies to all male-male intercourse and only to those scenarios where female-female intercourse involved “insertion” through the use of other objects.    

Subsections (c) requires that the intercourse be witnessed by four persons because unless unlawful intercourse is known to members of the community outside the defendant’s family, it is unlikely to harm the social order.  The four witnesses requirement may be satisfied by four persons testifying that they witnessed the sexual intercourse between the accused offenders with their own eyes.  Subsection (c) also provides that if the offense in Subsection (a) is proven with evidence other than the testimony of four witnesses, such as DNA evidence or evidence of pregnancy, the offense is one grade lower than it would otherwise be.  For example, if it can be proven with DNA evidence that an unmarried man has fathered a child outside of marriage with an unmarried woman, he would be guilty of a Class 3 misdemeanor.  If the same crime could be proven with four witnesses, the unmarried man would be guilty of a Class 2 misdemeanor.  It should be evident that evidence produced through violations of privacy, as guaranteed by the Constitution § 24 and this Code (see Chapter 230), cannot be used to prove this offense.  

 In addition, Subsection (d) authorizes an additional punishment of 100 lashes for the offense in cases where the offense has been proven by four eyewitnesses.  Offenses that are proved by other evidence, as described in Subsection (c), cannot receive the additional punishment of lashes.  Note that Section 411(f)(3) provides a precise definition of “lashes” in order to ensure that enactment of the punishment does not violate accepted notions of decency.  Note that Section 411(f)(3) defines “lashes” as a means of symbolic punishment of striking an offender’s back with a short length of rope in a manner not designed to cause bodily injury.  The definition further provides that a single person must inflict all of the lashes prescribed as punishment, and the person inflicting the punishment may only drive the rope using his wrists; he may not use any other part of his arm or movement in his shoulders, hips, back, legs or torso for that purpose.  

 Relation to other laws.  This Section reflects Maldivian law’s prohibitions on fornication, specifically Rules Relating to the Conduct of Judicial Proceedings, provisions 100 and 173.  However, this Section strays from prior Maldivian law in several ways, but in conformity with Islamic law.

 This Section revises prior Penal Code (1966), § 88(30) by introducing more stringent evidentiary requirements in order to reflect the notion that unlawful sexual intercourse is harmful to social order only when it is publicly known.  Support for Subsection (c) comes from evidentiary requirements for fornication under Islamic law.[23]  Muslim jurists have generally supported the view that information regarding this particular crime should not be made public.[24]  They cite a hadith concerning the case of Ma’iz, who had been encouraged to confess, but to fornication, but it was stated: “If you had veiled him with your cloak (i.e. hidden this crime) it would have been better for you.”[25]  Another hadith states: “Pardon the hudud among yourselves, for if it is reported to me then the legal penalty will be applied.”[26]

 This Section departs from Provision 100 of the Rules Relating to the Conduct of Judicial Proceedings because it does not create a separate offense for a woman who bears an illegitimate child.  Instead, the Code penalizes the act that created the child, rather than the child’s existence and avoids double punishment for the single act of intercourse.  The existence of the child may be a means by which the “publicly known” requirement is satisfied.  This change is supported by Islamic law which has no separate punishment for bearing an illegitimate child.[27]  

This Section drops the distinctions between minor and major acts of sexual misconduct detailed in the Rules Relating to the Conduct of Judicial Proceedings.  This change allows for a more streamlined offense definition.  Support for this streamlined definition is based on Islamic tradition.  

 Finally, several provisions of Maldivian law that may have previously been categorized as offenses against the family are codified under other Chapters of the Code.  First, the offense of false allegations of illegitimate sexual intercourse found in the Rules Relating to the Conduct of Judicial Proceedings Provision 257 is criminalized in this Code in Section 612 (False Accusation of Unlawful Sexual Intercourse).  Second, the behavior prohibited by the Rules Relating to the Conduct of Judicial Proceedings, Provision 173, governing sexual misconduct in public places, may now be prosecuted under this Section as well as Section 133 (Indecent Exposure).  This departure from Maldivian law allows for greater efficiency in categorizing types of harm.  

 Islamic law, which restricts lawful sexual intercourse to a husband and wife, supports Subsection (a)(1).[28]  The following verse of the Qur’an (17:32) is cited in support of this: “Approach not fornication, it is surely an indecency and evil.”  Muslim jurists define sexual intercourse as the insertion of the penis into the vagina.[29] 

 Subsection (a)(2) is supported by Muslim jurists who proscribe sodomy based on Qur’anic injunctions and Prophetic hadith.[30]  Support for the prohibition of lesbian sexual acts exists in certain Prophetic hadith.[31]

The punishments in Subsection (b) accommodate Maldivian law, Islamic law, and the grading scheme of the Code.  Some of the prison terms for this Section have been decreased for comparative grading purposes with other parts of the Code.  While the punishment of lashes has been removed from the overall grading scheme of this Code, lashes are specifically authorized for this offense.  It should be noted that lashes are only authorized in cases where the four witnesses evidentiary requirement of Subsection (c) has been satisfied.    

 Grading in Subsections (b) is consistent with Maldivian law.  However, it should be noted that Islamic law generally has lesser penalties for cases of lesbian sexual acts as compared to male homosexual acts because the presumption is no penetration or insertion of female organs can take place.   

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provisions 100 and 173.

Comment:

Generally.  This Section primarily criminalizes consensual sexual contact that is performed between persons who are not lawfully married.  This conduct should be publicly known prior to arrest.  The general rationale informing these laws is that such contact promotes social disorder.  A person who has sexual contact without knowledge or purpose lacks the requisite intent to commit the offense.  In addition, this Section also criminalizes certain forms of sexual contact that cannot be described as consensual.  Specifically, Subsection (a)(4) criminalizes sexual contact between a human and an animal, while Subsection (a)(6) prohibits sexual contact between a person who does so while misusing their “special place” in a family. 

For Subsection (a)(1), (a)(2), (a)(3) and (a)(5), the sexual contact should be publicly known prior to his arrest.  The phrase “prior to arrest” is meant to ensure that simply an allegation of unlawful sexual relations, which would not have otherwise been publicly known but for the prosecution of the offense, is insufficient.  This is meant to preserve individual’s privacy and prevent members of the public or law enforcement from aggressively seeking to regulate behavior that is occurring in private.  

All of Subsection (a) applies to sexual contact with a person of the same sex as well.

Subsection (c) defines “prohibited sexual contact.”  It prohibits “indecent acts” outside of unlawful sexual intercourse which is covered by Section 411.  Indecent acts are ones that involve the use of sexual organs for acts that do not rise to the level of intercourse, but still produce sexual gratification.  Sexual contact is defined in Section 131(b).

The grading scheme is divided into two parts: misdemeanor crimes and felonies.  Subsection (a)(1) to (a)(3) deal with standard cases of sexual contact involving married and unmarried individuals, which are punished as misdemeanors.  In these cases, married individuals are punished more harshly than other actors and two unmarried actors least harshly of all because unlawful sexual contact between married persons is considered more detrimental to the social order than sexual contact outside of marriage.  In addition, a married person engaging in sexual contact with a person not his spouse is graded more harshly than an unmarried person engaging in sexual contact with a person not his spouse because in the first case he is committing a double wrong –both engaging in sexual contact outside of wedlock and breaking the bonds of matrimony.  The unmarried person engaging in sexual contact outside of wedlock however is not violating the marital bond and, as a result, is punished less severely.

The second part of the grading scheme involves extraordinary instances of sexual contact that require more severe punishment and are punished as felonies.  Subsection (a)(4) pertains to acts of bestiality and receives the harshest penalty since consent is impossible here.  Subsection (a)(5) punishes sexual contact involving elements of incest.  Subsection (a)(6) punishes cases that are not strictly speaking incest, but involve an individual with a position of status within the family who exploits and misuses that position to engage in sexual contact.  

Subsection (a) punishes male homosexuality the same as female homosexuality.

 Relation to other laws.  This Section reflects Maldivian prohibitions on fornication, specifically Rules Relating to the Conduct of Judicial Proceedings, provisions 100 and 173.  The grading scheme entailed in this Section parallels the grading scheme of the above rules.    For Islamic legal support for this Section, refer to the commentary for Section 411.   

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings  173(6) and 173 (9); Law No. 9/91 – Law on the Protection of the Rights of Children § 25.

Comment: 

Generally.  This Section prohibits sexual intercourse and sexual contact between close relatives.  “Close relative” is defined in Section 413(d).  Note that such contact may also fall under Section 131 (Sexual Assault) in which case the prosecutor shall proceed under the more appropriate Section.  An actor should not be prosecuted under both sections for a single underlying act.  Subsection (a) defines the offense in terms of the willingness of the parties.  When a party is unwilling or unable to consent, a prosecutor shall use Section 131 (Sexual Assault).  

Subsection (b) punishes parents, grandparents or great-grandparents more harshly than actors bearing other relations to the person with whom they engage in sexual contact.  The reason for this distinction is that parents, grandparents and great-grandparents have a special duty to their children, grandchildren and great-grandchildren, so the violation of this relationship is especially damaging to the victim and society. 

            Note that sexual intercourse and sexual contact have the meanings given in Section 411 and 131 and that these definitions include activity both between people of the same sex and between people of the opposite sex.  Sexual intercourse is defined in Section 411(f).  Sexual contact is defined in Section 131(b).

 Subsection (c) introduces a sentencing factor to cover cases where a person who holds a position of special importance within a family abuses that position to commit the offense of Incest.  Under Subsection (c), that person’s baseline sentence is aggravated one level so long as he is not one of the persons mentioned in Subsection (b)(1) – i.e., either a parent, grandparent, or great-grandparent of the close relative.

                       Subsection (b)(3) authorizes an additional punishment of 19 lashes for this offense. 

Lashes has been defined in Section 411(f)(3) and is not meant to cause bodily injury.

 Relation to other laws.  Maldivian law prohibits sexual contact between parents and children and between persons with whom marriage is proscribed.  

Under the Rules Relating to the Conduct of Judicial Proceedings Provisions 173(6) and 173(9), when a parent engages in sexual misconduct with a child, punishment differs slightly depending on whether or not the child has reached puberty.  Under the Code, Section 131 (Sexual Assault) and this Section work together to grade an actor more harshly when he engages in sexual misconduct with one who has not reached puberty.

Islamic law supports this Section by proscribing marriage to particular kin.  Since sexual intercourse is only permitted between married spouses, any sexual intercourse with unmarriageable kin is an offense.[32]  It should be noted that this Section considers incest to be between the respective unmarriageable kin through step-relationships as well.  This prohibition is consistent with Islamic law.[33]

Corresponding Provision(s):  Law No. 9/91 – Law on the Protection of the Rights of Children §21 and §25.

Comment: 

 Generally.  This Section criminalizes the endangerment of children caused by abandonment and neglect.  The offense reflects the duty parents owe to their children.   Subsection (a) defines the offense in terms of a rule and a standard.  Subsection (a)(1) makes it an offense for a parent or guardian to abandon a child in circumstances that would unreasonably endanger the child’s wellbeing.  The rule in this Subsection restricts use of this Section to cases in which the child is under the age of 14 and has been abandoned for at least a day.  The standard requires that the prosecution show the child was unreasonably endangered.  Both the rule and the standard must be satisfied.

Subsection (a)(2) expands parental duty to include preventative measures and makes it a crime for a parent or guardian to fail to take reasonable measures to prevent the commission of an offense defined in Chapters 110, 120, or 130 against his or her child if he or she knows such an offense is likely to occur.  The standard in this Subsection also requires that the prosecution show that the parent or guardian should have taken reasonable measures to prevent the commission of the offense and that the parent or guardian knew that such an offense was likely to occur.  Whether a parent or guardian took “reasonable measures” should be ascertained by asking what a reasonable person in the parent, step-parent or guardian’s position would do to prevent assault of their child or child in their legal custody.  This decision should take into consideration the societal and cultural context as to what action would have been reasonable.  

For example, suppose that a father sexually assaults one of his children, that the mother is aware of the assault, and that the mother is an ordinary adult.  To avoid liability under Subsection (a), the mother must report the father’s offense to law enforcement authorities as soon as practicable, or she must attempt by affirmative action to prevent commission of the offense.  However, before assessing liability, this Section requires examining the defendant’s particular circumstances, including societal and cultural context, to see what action was reasonable.  The mother may avoid liability if: she reasonably believes that the father has not committed an act constituting an offense, or her condition is such that she is unable to oppose the father directly or indirectly by contacting law enforcement authorities.  Note that absent the conditions preventing action, fear of the reaction of the father, whether violent or not, does not justify a complete failure to act.  However, such fear should bear on whether any affirmative measure taken by the mother is deemed reasonable.  In cases where the mother asserts that she is unable to oppose the father, the fact finder should give considerable weight to the testimony of a qualified mental-health professional.  

Subsection (a)(3) imposes liability if a parent fails to register his child at the time of birth.  Subsection (b) lists some factors which shall be considered in order to determine whether the actor violated the standard under Subsection (a).  Subsection (b)(1) accounts for the fact that certain children under the age of 14, because of their maturity, may not be unreasonably endangered by twenty-four hours of abandonment.  Subsections (b)(2) and (3) recognize that economic hardship and other circumstances may prevent well-meaning parents from fulfilling their obligations.  The presence of this list does not prevent the fact-finder from considering other factors relevant to whether the child was abandoned under circumstances that unreasonably endanger the child’s physical health, safety, or welfare.

            Subsection (c) grades the offense as a Class 1 misdemeanor.

Relation to other laws.  Maldivian law prohibits parents who are in disagreement or conflict from acting “in a manner detrimental to the health, education or conduct of the child.”[34] The law also prohibits persons from acting in a way “that is detrimental to the integrity of children” or that exploits or oppresses a child.[35]  This Section and Section 415 expand Maldivian law, but abide by the same principles.  Support for this additional construction comes generally from Islamic law, which prohibits “neglecting one’s dependents.”[36]

Corresponding Provision(s):  Family Law Act 2000 (No.: 4/2000) §70.58; Law No. 9/91 – Law on the Protection of the Rights of Children § 21; Rules Relating to the Conduct of Judicial Proceedings, Provision 227.

Comment: 

 Generally.  This Section criminalizes non-support of persons who are considered unable to fend for themselves and to whom one owes an affirmative duty.  

 Subsection (a) limits application of this Section to non-support of minor children, parents over the age of 50, and incapacitated parents and spouses.  The non-incapacitated spouse is left off the list of persons to whom one owes support because such a spouse is not considered unable to fend for himself.  Non-support of a non-incapacitated spouse would be a civil violation.  Subsection (b) provides a definition for incapacitation.  Subsection (c) grades the offense as a Class 5 felony.

Relation to other laws.  Maldivian law requires that men support their parents if they are able, but it does not make this obligation contingent upon their parents’ age.  Islamic law and Maldivian norms, respectively, support limiting and expanding this legal obligation in the Code.  Islamic law supports imposing this obligation of parental support on women as well as men, because it states generally that people should support their parents.[37]  Maldivian norms, however, suggest that this obligation should be limited to children whose parents are more than 50 years old, because in most families, parents under that age are able to support themselves, while their children are not yet able to support themselves or anyone else.  

Maldivian law also prohibits parents who are in disagreement or conflict from acting “in a manner detrimental to the health, education or conduct of the child.”[38]  This Section and Section 414 expand Maldivian law by providing explanatory details for what constitutes an offence under this Section.

Under the Family Law Act (2000), after a divorce a husband must pay maintenance and also make the arrangements and bear the costs for enabling his wife to reach her place of birth or permanent residence.[39]  This Code leaves these matters to be addressed by the civil law.  This reflects the separation of civil and criminal law underlying the codification process.  

Subsection (a)(1)(iii) is supported by the principle behind Family Law Act 2000 (No.: 4/2000) § 70.38, where a husband cannot eject a wife from their common household against the wife’s will during the period of her iddah, or if she has been granted custody of their child(ren), until the husband finds the wife another suitable place to live. 

There is general support for this Section in Islamic law which makes it obligatory to support one's parents and children.[40]  

Subsection (b)’s exception is also found in Islamic law under the title “incapacity.”  Islamic law makes an additional exception for “poverty” which also relates to the central premise of Subsection (b).[41]

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(9); Criminal Court Circular 4/SP/2003.

Comment: 

Generally.  This Section criminalizes abortion after the first 120 days of the fetus’ development, subject to certain exceptions.  By only criminalizing actions taken after the first 120 days of pregnancy, this Section reflects the distinction, traditional in Islamic law, that after a certain point the fetus acquires a soul. 

Subsection (a) criminalizes performing an abortion on oneself or another party or having another person perform an abortion on oneself.  Subsection (a)(1) makes it an offense for a person to perform an abortion on another person.  Subsection (a)(2) provides liability for the woman upon whom the abortion is performed if she requests that another person terminate her pregnancy, or if she takes measures to terminate her own pregnancy.  Note that she must take these measures with the purpose of terminating her pregnancy; however, it is not necessary that she actually accomplish terminating her pregnancy as long as she uses instruments, drugs, or violence upon herself for that purpose.  Additionally, a person who assists another person in the performance of an abortion is liable as an accomplice under Section 30 (Accountability for the Conduct of Another).  

Subsection (b) provides an exception for cases in which the pregnancy endangers the mother’s life.  This reflects the general principle that one must balance the mother’s right to life with that of the fetus.

Subsection (c) clarifies that using or prescribing birth control is not an offence. 

Subsection (d) creates an exception for pregnancy resulting from both sexual assault and incest in order to allow victims of sexual assault to choose not to keep the child of their attacker and in order to prevent birth defects and other congenital disorders that may result from incestuous relationships.

Subsection (e) grades the offense as a Class 1 misdemeanor.

Relation to other laws.  Maldivian law makes a distinction in grading dependent upon whether the fetus is has or has not reached the fourth month of its development, on the theory that before the fourth month the fetus has not acquired a soul.[42]  The Code reflects this distinction in Maldivian law. 

 There is general support for this Section in Islamic law.  Many Muslim scholars permit aborting the fetus prior to it being fully formed and given a soul.[43]  According to the Egyptian body issuing Islamic legal opinions, this occurs prior to 4 months because the “breath of life” has not been blown into the fetus until that stage.[44]

Comment:   

Generally.  This Section collects defined terms used in Chapter 410 and provides crossreferences to the Sections in which they are defined.

 Relation to other laws.  For discussion of the relationship between Chapter 130’s defined terms and Maldivian Law, refer to the commentary for the Section in which each term is initially defined.

 Chapter 510 is intended to address crimes against public administration, which are generally considered to cover corrupt practices by and towards the government and public officials.  Corruption can occur in two ways.  First, corruption occurs when a public official benefits from his position in a way not foreseen by law – in essence, a dishonest way of making money.  Second, corruption occurs when a person attempts to “proffer” their wealth to a public official in an attempt to induce them to act illegally or for the benefit of the profferor.   

Islamic law generally prohibits bribery especially in the administrative context.  Muslim jurists cite the following verse of the Qur’an as a prohibition against dishonest ways of making money: “Consume not your property among yourselves in vanity, neither proffer it to the judge, that you may sinfully consume a portion of other men’s property intentionally.”[45]  In addition, they also point to the hadith where the Prophet (pbuh) cursed the one who bribes and the one who takes a bribe.[46]  Ibn Hajar Haytami lists “taking a bribe for falsehood; or being an intermediary between the persons giving and accepting it” as an offense.[47]  He considers bribery in the judiciary an extremely serious matter.[48]  Other kinds of bribery are cognizable under the executive’s mazalim jurisdiction, which covers cases where governors or public officials have violated a citizens rights.[49].

 The Code merges all bribery offenses into one statute for the purpose of efficiency and ease of reference.  Prohibitions against corruption eliminate a wide range of harms including undermining of government legitimacy and disruption of the political process.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 77, 80, 81 and 120; Maldives Monetary Act Sec. 10.

Comment:

 Generally.  The purpose of Section 510 is to criminalize bribery and other corrupt transactions by which a public official or candidate for public office is offered, solicits, or accepts a benefit in exchange for the performance of his function.  See Section 315(b) for the definition of “benefit.”

 Section 510(a) addresses the receipt of a bribe by a public official, although this would also apply to a person seeking to be a public official.  Prohibited acts include soliciting, accepting, or agreeing to accept a bribe.  A bribe is defined as an exchange or draft exchange with two components: (1) the soliciting, accepting, or agreement to accept a benefit not lawfully authorized, and (2) the public official influencing or agreeing to influence the use of official authority, or the exchange of a benefit for the use or omission of use of official authority.  Because the prohibited act is soliciting, accepting, or agreeing to accept a bribe, it is no defense to Section 510 that the transaction is not consummated.  That is, the failure of a public official to obtain a benefit, the failure of a private citizen to agree to offer the benefit, or the failure of the public official to influence, use, or omit to use official authority does not relieve the public official of criminal liability.  The mere solicitation, acceptance, or agreement to accept a benefit for a public official’s influence, use, or omission of official authority is sufficient.

 The minimum culpability requirement for these acts is knowledge, and the culpability requirement applies to all elements.  This means that a public official or candidate for public office who innocently accepts a present, which the giver believes to be a bribe would not be guilty of corruption.   

 Under the offense definition, a public official or candidate for public office must solicit, accept, or agree to accept a benefit not lawfully authorized.  The inclusion of “not lawfully authorized” is intended to except services for which there is an authorized fee.  For example, if the lawful cost of a permit is 50 Rufiyaa, a public official or candidate cannot be prosecuted under Section 510 for accepting the 50 Rufiyaa in exchange for issuing the permit.  “Benefit” is expansively defined, as will be discussed below in the commentary on Subsection (c).  The benefit may be accepted by the public official or candidate directly, or may be accepted by the public official or candidate on behalf of another person.  The latter provision is intended to criminalize transactions by which a bribe is given not to the public official, but to a public official’s family member or friend.  It is also possible that a defendant would agree to a bribe for an employer or someone who is using him as an intermediary in an organized crime scheme.  In such a case, the duress defense found in Section 55 of this Code should be available if the defendant can prove the existence of a serious threat.

 The inclusion of “influencing or agreeing to influence” the use or omission of official authority is intended to cover transactions in which a public official uses his to influence a decision.  

Example 1:  D accepts $10 from E in exchange for testifying at a trial that he did not see E commit a crime.  D has accepted a benefit not lawfully authorized in exchange for agreeing to influence a judge’s use of official authority.  As such, D would be guilty of accepting a bribe under Section 510(a).

 The inclusion of “using or omitting to use” official authority is intended to cover transactions where the public official uses his position to make a decision.  

Example 2:  J, a judge, agrees to accept a gift of fruit from D, a defendant charged with a crime being tried by J, in exchange for J deciding that D is not guilty.  J is guilty under Section 510 because he has accepted a bribe not lawfully authorized in exchange for using his official authority to find D not guilty.

 Section 510(b) criminalizes offering or giving a bribe.  Unlike Section 510(a), all persons, rather than just public officials, are eligible for prosecution under Section 510(b).  Additionally, as with Section 510(a), there is no requirement that the transaction be consummated.  Instead, the only requirement is that a person offer or give a bribe to a public official.

Example 3:  K offers L, a police officer $50 to overlook his traffic violation and not issue a citation.  L refuses to accept the $50 and issues the citation nevertheless.  K has offered a person a benefit in exchange for the omission of official authority.  As such, K is guilty of offering a bribe under Section 510(b). 

The definition of transactions that qualify as bribes is the same as in Section 510(a), except that the receiving party need not be a public official.  This difference reflects the possibility that the person receiving the bribe may not be a public official, but rather may be a friend or relative of the public official purporting to influence the use or omission of official authority.  It also ensures that all persons attempting to offer bribes are eligible for prosecution, even if the intended recipient of the bribe could not be prosecuted under Section 510(a) 

Section 510(c) defines “official authority” as “the performance or non-performance by a public official of a public duty or the use or non-use of state power by a public official to grant or deny a benefit to a person.”  The performance of a public duty might include acts like arresting a person who has committed a crime or approving an application for a professional license if the requisite conditions are met.  The non-performance of a public duty might include acts such as failing to arrest a person who has committed a crime or denying an application for a professional license.  The use and non-use of state power to grant or deny a benefit encompasses situations where it is within the lawful discretion of a public official to make decisions regarding a benefit.  For example, a public official who is conducting a bidding process for a public works project might use his power to deny the bid of a construction firm who would have otherwise won or approve the bid of a construction firm who would not have otherwise won.  The use of one’s power and office to engage in actions that are illegal or not within the discretion of the public official –is addressed in Section 512 (Official Misconduct).

 The offense, as defined in Sections 510(a) and 510(b), applies to bribes accepted or offered to candidates for public office as well as those already holding office as public officials.  Public official is defined as “any person in the service or pay of the State or who exercises Official Authority acting in their official capacity.”  This would include all employees of the State, as well as private employees under contract to the State to perform State functions.  This definition also includes elected officials as well as persons who are delegated official authority but who are not compensated.  Any person who has temporarily been delegated official authority would also be covered by this provision.  Lastly, the person must have been acting in his official capacity to be considered a public official.  Thus, a public official who accepts a bribe or engages in illegal activity outside of his public office does not fall within this definition.  This reflects a general understanding that public officials who commit crimes that do not involve the use of their power as a public official should not be punished more severely than any other person.

Subsection (d) assigns the same grade for offering and accepting a bribe.  The relative severity of punishment (a Class 3 felony) reflects the principle that the harm caused by corruption extends beyond the parties immediately involved to the polity as a whole.  The existence of corruption leads to a general lack of faith and confidence in the government.

 Relation to other laws.  Section 510 encompasses a greater range of behavior than that envisioned in the prior Penal Code (1966) Provisions 77, 80, and 81, which only criminalize bribery in the context of criminal prosecutions.  Rather, Section 510 encompasses all forms of bribery to all public officials, including those foreseen in the Maldives Monetary Act.[50]  The justification for the more expansive criminalization is that the underlying harm created in the bribing of a public official to aid an offender can also be found in bribing a public official to do a wide variety of things within his office.  For example, bribing a public official to release an offender will lead to that public official deciding the fate of the offender in an unjust manner – the public official will decide the case on the basis of the bribe, rather than the merits of the case.  Likewise, bribing a public official to grant a building permit will lead to the public official deciding to grant the permit on the basis of the bribe, rather than whether the building is authorized or is of safe and sound structure.  

 Section 510 also omits certain behavior criminalized by the prior Penal Code (1966) Provisions 77, 80 and 81, which cover bribery resulting in illegal acts and acts within the lawful discretion of a public official.  Section 510 only criminalizes the latter.  Bribery resulting in illegal actions by a public official in their official capacity is criminalized in Section 512.

 Section 510 does not directly address the issue of vote buying that is prohibited in Penal Code (1966) Provision 120 because voters are not public officials as defined by this Section.  Rather, Section 540 of this Code addresses the issue of vote buying by criminalizing conduct that harmfully interferes with a witness, voter or other person performing a public duty.  

 Islamic legal support for this Section is discussed in the introduction to this Chapter.  In addition, as Yusuf al-Qaradawi states, 

Islam has prohibited the Muslim to approach the officials of a government or their subordinates for the purpose of offering them a bribe; it has prohibited the latter to accept it; and it has prohibited that any third person should arrange matters between the givers and the takers of the bribe.[51]  

Corresponding Provision(s):  None

Comment:

 Generally.  Section 511 criminalizes those who attempt to influence the use of official authority by public officials (or those who will become public officials) by committing or threatening to commit an offense.  This provision is similar in many respects to Section 510(b) except that it reflects a nonconsensual transaction rather than a consensual exchange of benefits.  A person may be convicted under Section 511 as well as other threat and assault provisions in Chapter 120, as the harm to be prevented by Section 511 is the injury to public institutions, rather than the recipient of the threat.  

 Subsection (a) prohibits the act of committing or threatening to commit an offense with the purpose of influencing the exercise of official authority by a public official.  The offense also applies to offenses or threats made when they are intended to influence the future exercise of authority by a candidate for public office.  Nevertheless, the prohibition is not intended to extend to acts resulting in electoral harm.  For example, a person who threatens to withhold his or her vote for a public official with the intent of influencing that public official’s actions would not be prosecutable under Section 511.  Nor would a person be liable if he threatened to withhold campaign contributions with the purpose of influencing a candidate’s future actions as a public official (if he wins the election).  Moreover, the offense may be committed or threatened against any person – for example, threats to the family of a public official would fall within 511, as long as they were intended to influence the exercise of authority by a person who is or will become a public official.  

 In keeping with the definition of “official authority” in Section 510, the use of official authority includes the omission of an act.  Thus, a person who threatens a person with violent injury so as to influence a public official not to take action also falls within the definition in subsection (a).  Lastly, the intent to influence the use of official authority need not be made explicit.  A person may be convicted under Section 511 so long as there is some direct or circumstantial evidence of his subjective purpose to influence the use of official authority.  This is reflected in Subsection (a)(2) which prohibits direct or indirect communication with a public official in a manner prohibited by law.

 Subsection (b) provides that the offense contains two levels.  Committing or threatening to commit an offense in order to influence a public official is a Class 4 felony.  Communicating with a public official in a prohibited manner is one grade lower, a Class 5 felony.  As with Section 510, the relative severity of punishment for this offense reflects the far ranging harms that result from improperly influencing a public official.

 Relation to other laws.  Maldivian law does not punish the specific action of making a threat to influence the use of official authority.  However, the harm to be prevented is the same as that of bribery, which is criminalized in Provisions 77, 80, and 81 of the prior Penal Code (1966), as well as Section 10 and 11 of the Maldives Monetary Act.  

 Coercion is considered a serious matter in both civil and criminal contexts under Islamic law.[52]  Islamic legal support for this Section is found in the commentaries to Sections 122, 141, 213, and 221 of the Code.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 77, 80 and 81

Comment:

 Generally.  Section 512 criminalizes behavior by public officials acting in their official capacities that is illegal.  Generally, Section 512 is not intended to address the harm caused by the illegal behavior, but rather, the harm that results to public administration and government operations from the use of official authority and resources to affect the illegal act.  For example, a police officer who, while on duty, assaults a citizen without justification should be charged with official misconduct in addition to assault because of the fear that the assault will create in the public at large.   However, a town clerk who, in his free time, robs a store is not acting under the auspices of town power and thus should not be prosecuted under Section 512.  To determine whether a public official has acted in his official capacity, factors to consider include whether the action was within the scope of employment, whether the action occurred during working hours, and whether the action took place at or near the location of employment.  It is possible that when dealing with higher government officials, it would be sufficient to limit the inquiry to whether the transaction was within the scope of the defendant’s employment.

 Subsection (a) provides for two prohibited acts.  Subsection (a)(1) punishes a public official who fails to perform a mandatory duty as required by law.  In order to be convicted under Subsection (a)(1), the duty must be truly mandatory, that is, the public official must have no discretion as to whether or not to perform it.  Thus, a judge could not be found guilty of official misconduct for failing to convict a person, because the judge is granted the discretion to determine guilt or innocence.  However, in the case of an official who distributes driving permits and knowingly declines to distribute a permit to a person who has met all the requisite conditions, there is no discretion to not grant the permit, and as such, the official would be guilty of official misconduct.  Note that in the prior case of an official who has discretion, if the discretion is exercised as the result of a bribe, the official would be prosecutable under Section 510(a).  As noted before, Section 512(a)(1) can only be used to prosecute a public official acting in his official capacity.  Thus, if a person seeking a driving permit appeared at a public official’s house outside of business hours and requested that he grant a driving permit, the public official would not be criminally liable if he refused to grant the permit until the next business day.  

 Subsection (a)(2) punishes a public official who, acting in his official capacity, performs an act that is not lawfully authorized.  This provision covers acts that either are not lawfully authorized as part of the public official’s duties –for example, a fisheries official who grants permits without permission –or are made explicitly illegal in this criminal code – for example, an official in the Ministry of Culture who illegally detains a person.  The public official must know that the act is not lawfully authorized.  Thus, a public official who is mistaken as to his power and issues permits when he is not authorized to do so could not be prosecuted under this Section.  However, public officials are treated as other citizens with regards to illegal acts, and their knowledge as to the illegality, unless noted otherwise, is not an element of the crime.  In such cases where a public official commits an illegal act in his official capacity, the culpability requirement of knowledge only extends as far as requiring that the official know that they are committing the act.  As noted before, Section 512(a)(2) is limited to officials who act in their official capacity.  Thus, a Ministry of the Environment official who is found guilty of an illegal marriage cannot be prosecuted under 512(a)(2), as his illegal marriage is not related to his official duties.

            Subsection (b) grades the offense as a Class 1 misdemeanor.  

 Subsection (c) adds a sentencing factor that aggravates the defendant’s baseline sentence one level if he commits the offense in exchange for a benefit to himself or to a close relative or friend.  This sentencing factor recognizes that a public official’s misconduct is more serious when it benefits the official himself or one of his relatives or friends.  In such cases, the official’s misconduct also probably subjects him to liability for bribery under Section 510(a).

 Relation to other laws.  Maldivian law criminalizes similar behavior in Sections 77, 80, and 81 of the prior Penal Code (1966).  However, these provisions only address official misconduct within the context of criminal prosecutions.  There is a strong public policy argument for extending this to officials outside of the sphere of criminal prosecution, as official misconduct by other public officials creates the same types of harm.  Officials who engage in misconduct are likely to harm the legitimacy of the government, the confidence that citizens have in the political process.  In addition, official misconduct is likely to impede the effectiveness of government operations.  

 Furthermore, there is general support in Islamic law for criminalizing the performance of illegal acts by public officials, particularly in relation to the official conduct of the judiciary.[53]

Corresponding Provision(s):  None

Comment:

 Generally.  Section 513 criminalizes a public official’s use of confidential information or his own official authority to obtain a benefit for himself or another.  The harm intended to be punished is the damage done to confidence in the government and perceptions of public officials when public officials are allowed to obtain benefits not generally available to the public simply because of their status as a public official.  Essentially, Section 513 punishes public officials who are not serving the public, but rather themselves.

 Subsection (a)(1) prohibits the act of using confidential information to which the government official had access by virtue of his status as a public official.  Confidential information means information that is completely unavailable to members of the public.  If the information is provided to the government in confidence but then becomes public because of disclosure external to the government, the information is no longer confidential for the purposes of this Section.  The public official must have had access to the information by virtue of his status as a public official and not through other channels.  This is to say that a public official who comes about information through social or other non-professional channels and subsequently uses that information to his benefit cannot be prosecuted under Section 513.  There is no culpability requirement stated for Subsection (a)(1), as such, per Section 24(h), the culpability requirement is recklessness.  This implies that a public official need only have known that there was a high probability that the information he used was confidential, and then used it in disregard of that probability.   Subsection (a)(2) requires that the confidential information specified in (a)(1) be used to obtain a benefit for himself or for another person to which he is not entitled.  This provision shares language with the provisions for theft and identity fraud, and generally reflects the idea that by misusing the confidential information, the offender is depriving the public of a benefit to which they are generally entitled. In addition, this Section seeks to punish the public official’s unjust enrichment of himself.  As in Section 510, benefit is defined broadly, and can include both pecuniary and non-pecuniary, as well as material and non-material benefits.

Example 1:  X, a government official, becomes privy to confidential information regarding the poor health of company Y.  X then encourages his friend Z to sell all of his stock in company Y to avoid a loss.  X has used confidential information to which he had access by virtue of his status as a public official for the purpose of obtaining the benefit of an avoided loss for Z.  As such, he is guilty of misuse of confidential information under Section 513(a).  

Subsection (b) prohibits the use of official authority to obtain an illicit benefit.  Subsection (b)(1) prohibits a person from using or influencing official authority in his capacity as a public official.   Extensive discussion on the use or influence of official authority can be found in the commentary to Section 510.  The use or influence of official authority must be done within one’s capacity as a public official, because the law need not punish a person who is not a public official, and who influences official authority without committing an offense under Sections 510 or 511.      

 Subsection (b)(2) requires that the official authority must be used or influenced for the purpose of obtaining a benefit for himself or for another person to which he is not entitled.  This language would also permit prosecution if official authority were used to obtain a benefit for a group of people.  However, this provision is not intended to be used to prosecute public officials who are pursuing legitimate public policies that benefit one group of people more than another – the benefit must be one to which the group is not entitled, implying that the benefit is inherently illicit and obtained outside the legitimate political process.  As with Subsection (a), the term benefit is defined broadly, and could include both pecuniary and non-pecuniary, material and non-material benefits.  

 Subsection (c) grades the offense as a Class 4 felony.  The relatively severe punishment for this offense reflects the fact that the harm is not to one specific person but to the public as a whole.  Furthermore, severe punishment of this crime is intended to deter public officials in engaging in corrupt behavior.

 Relation to other laws.  Maldivian law contains no parallel provision. However, there is a strong public policy argument for criminalizing illicit enrichment in the official context, in that it deprives the public of benefits to which they are entitled as a whole.  Furthermore, the use of a public official’s position to obtain benefits, which are not generally shared with the public encourages public officials to make decisions which benefit themselves and not the public at large.  Lastly, as mentioned above, in the preamble to Chapter 510, Islamic law condemns those who make money dishonestly, which applies to the behavior addressed in this Chapter.[54] 

Corresponding Provision(s):  Maldivian Monetary Act, Sec. 11

Comment:

 Generally.  Section 514 criminalizes the unauthorized disclosure of confidential information by public officials.  Subsection (a) defines the prohibited act.  Subsection (a)(1) defines the class of persons eligible for the offense as persons who act in knowing violation of a duty imposed on them as public officials.  Thus, to be eligible for the offense, the person must have known that the information was confidential and not to be disclosed – mere negligent disclosure cannot be prosecuted under Section 514.  Furthermore, only public officials are eligible for prosecution under Section 514, recognizing that persons who are not public officials are under no general duty to keep government information confidential.

 Subsection (a)(2) defines the prohibited act as the disclosure of confidential information acquired as a public official.  Such disclosure can be to one person, or it can be disclosed in a more general manner.  The information must be confidential, that is, as with Section 513(1), information already available to the public is no longer confidential and one cannot be prosecuted for disclosing it.  The information must have been acquired as a public official, that is, disclosure of information acquired outside the government, in prior or current social or professional contexts is not criminalized under Section 514.

 Subsection (b) grades the offense as a Class 1 misdemeanor.  Section 514 is graded differently than Section 513 because the confidential information is simply being disclosed, which although harmful, is not being used to deprive the public of a benefit as in Section 513.    Relation to other laws.  The Maldivian Monetary Act punishes disclosure of confidential information by certain government officers.  However, there is a strong public policy argument to extend this prohibition to all public officials.  Disclosure of confidential information can be harmful to the government as well as to persons who may have initially provided such information.  As such, disclosure by any public official is harmful and should be punished.

 There is significant support in Islamic law for the preservation of privacy, in particular confidential information.  Muslims jurists are in agreement that “revealing of anything whose disclosure is resented” is forbidden.[55]

Comment:

 Generally.  This Section collects defined terms used in Chapter 510 and provides crossreferences to the Sections in which they are defined.

 Relation to other laws.  For discussion of the relationship between Chapter 510’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

 Chapter 520 criminalizes a broad range of conduct involving perjury and other falsification in official matters.  This Chapter defines offenses relating to the giving of false statements, the falsification of documents, false alarms, false reports to law enforcement authorities, and the impersonation of public servants.  

 Islamic law generally condemns perjury.  Muslim jurists cite the hadith in which the Prophet (pbuh) spoke of three great sins, stating: “And I warn you against giving forged statement and a false witness.”[56]  In addition, jurists demonstrate the severity of this offense by noting that it appears in the Qur’an alongside idolatry: “Shun the abomination of idols, and shun false testimony.”[57] 

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 62, 63, 66, 68 and 69;

Rules Relating to the Conduct of Judicial Proceedings, Provision 197(2)

Comment:

                          Generally.  Section 520 defines perjury, the basic false statement offense.  Under

Subsection (a), three elements must be met in order for the offense of perjury to be committed.   An offense is committed when a person makes a false statement that he does not believe to be true during an official proceeding.  

 A statement is the total impression a person gives with respect to the matter in question.  Therefore, the offense of perjury is committed only once when a person repeats the same false statement in the same proceeding.  

Subsection (a)(2) states the required culpability as to the falsity of the statement made.  The “does not believe to be true” standard falls short of requiring proof of knowledge or belief that the statement is false.  This standard stretches beyond a person who makes a statement that he knows is false.  Under Subsection (a)(2), a person is sufficiently liable if he makes a statement without addressing in his mind its truth or falsity.  For example, a person who makes a false statement under oath in an official proceeding will escape liability if he believes in the truth of what he says.  Additionally, a person will not be held liable for false statements which are inadvertent misstatements made as a result of his misunderstanding of the question or a slip of the tongue. 

 In order to find liability, this false statement must be made under oath or similar affirmation or in swearing or affirming the truth of a statement previously made.  See Section 521 for false statements made during investigations while the person is not under oath or in official proceedings.

 Subsection (b) provides an exception to liability when the person making the false statement retracts his statement.  The purpose of this subsection is to provide an incentive for people to correct falsehoods made in official proceedings.  However, it is narrowly written so as to limit the temptation for people to commit perjury with the belief that they can tell the truth later to escape liability.  In order to escape liability a person must retract the false statement in the same proceeding in which it was first made before it becomes manifest that the falsification was or would be exposed and before the false statement affects the outcome of the proceeding.    Subsection (c) provides that the fact that an oath was administered improperly or that the person making the statement was not competent to make the statement will not relieve a person from liability.  Subsection (c) also states that a document that is purported to be made under oath or affirmation and is subsequently presented as being so verified will be considered as under oath.  Therefore, a person is not able to claim as a defense that a document containing a false statement was not made under oath if that person presented the document, claiming that it was made under oath.  Finally, Subsection (c) ascribes to the principle that a person is liable if he was put on notice that he must tell the truth.  He should not escape liability because of technical irregularities in the effectiveness of the oath.  

 Subsection (d) requires that in order for a person to commit an offense under this Section, the proof presented must exceed the testimony of one person.  For example, if a person has lied under oath as to the contents of his safe deposit box at the bank, the testimony of one bank employee would not provide sufficient proof of his guilt.  However, sufficient proof would consist of two bank employees testifying that the person has lied, or the prosecution presenting physical evidence (such as the contents of the safe deposit box) in addition to the one employee’s testimony.  

 Subsection (e) grades the offense more severely if the false statement was material.  Subsection (f) clarifies that a statement is material if it could have affected the outcome of the proceeding.  Subsection (f) also provides a definition for “official proceeding.”

Relation to other laws.  Section 520(a) is parallel to the offense of “giving false oath” found in the prior Penal Code (1966) Provisions 68 and 69.  Subsection (a) also codifies the offense of “giving false evidence,” as defined in prior Penal Code (1966) Provisions 62 and 63, when that “false evidence” is given under oath and in an official proceeding.  The “giving of false evidence” not under oath or in un-official proceedings is criminalized in subsequent sections of this Chapter.  With regard to the making of sworn false statements through a writing or document, this Section runs parallel with the prior Code, Provision 66.  

 The prior Penal Code (1966) Provision 62, which criminalizes the making of false statements, sworn or not sworn, in investigations as well as in official proceedings, also provides the basis for this Section.  Section 520 of this Code limits liability to those false statements made in official proceedings while under oath.  The making of false statements while the declarant is not under oath or in an un-official proceeding, such as an investigation, is criminalized in Section 521.

 The broad standard for finding culpability as to the falsity of a statement found in the “does not believe to be true” standard is consistent with the culpability level required under prior Penal Code (1966), Provision 62.  The culpability level in both Section 520(a)(2) of this Code and Provision 62 falls short of requiring that a person know the statement is false.  The essential difference between a perjury offense and any other offense involving truth and falsity is that in the case of perjury the perpetrator affirmatively swears that the proposition is actually true, not that it is most likely true.  For this reason, this Code punishes a perjurer not simply when he actually knows his statement to be false, but also when he does not believe in the truth of his statement.   However, although 520(a) contains no requirement that the defendant "verify the truth of the statement before it is made" to avoid liability, it is also no defense to prove reasonable investigation of the truth of the statement (if the court credits the State's evidence over the defendant's).

 Section 520(a)(2) does not go as far as the prior Penal Code (1966) Provision 62 in requiring that a person verify the truth of the statement before it is made.  Section 520(a)(2) only requires that, to avoid liability, the person making a false statement in an official proceeding while under oath address in his mind the truth or falsity of the statement and make that statement believing it to be true.  This is because a witness should not be expected to verify his or her beliefs beyond what is necessary to convince the witness of the truth of a statement. A witness who makes an identification, for instance, should not be compelled to talk to other witnesses to verify if his identification is accurate.  Questioning by an attorney should determine how the witness's belief came about and whether the belief is well-grounded in reality. If there are extrinsic proofs of the truth or falsehood of the witness's statements, either party, rather than the witness, should have the responsibility for finding those extrinsic proofs. 

Subsection (b) parallels Provision 197(2) of the Rules Relating to the Conduct of Judicial Proceedings.  However, Section 520(b) provides an exception if the false statement is retracted in the same proceeding in which it was first made before it becomes manifest that the falsification was or would be exposed and before the false statement affects the outcome of the proceeding.  This exception is included in order to provide an incentive for individuals to retract their false statements.

Islamic law generally punishes false testimony as described in the introduction to this Chapter.  Additionally, sworn statements or oaths are punished more severely in Islamic law and have been recorded by Ibn Hajar Haytami in his “List of Enormities.”[58]  Under Islamic law, both the Maliki and Hanafi schools of thought support the required culpability under Subsection (a)(2).[59]

Corresponding Provisions(s):  Maldives Penal Code (1966), Provisions 62, 63, and 67; Rules

Relating to the Conduct of Judicial Proceedings, Provision 197(2) and 197(3)

Comment:

Generally.  Section 521 criminalizes knowingly making false statements, written or oral, to public servants or law enforcement.  This includes making of false statements by persons while they are not under oath.  The offenses in Section 521 are Class 1 misdemeanors.

 Subsection (a) defines the offense for written falsification.  In order to find liability under Subsection (a), the person must make a false written statement or omit information necessary to prevent a statement from being misleading with the intent to mislead a public servant or law enforcement official.  Subsection (a)(3)(A) contains the “does not believe to be true” standard.  See the commentary for Section 520 for a discussion of this standard.  Subsection (a)(3)(B) criminalizes the knowing omission of information necessary to prevent a written statement from being misleading.  Under Subsection (a)(1), that omission must be intended to mislead a public servant or law enforcement official.  

 Subsection (b) defines the offense of verbally making false statements intended to mislead a public servant or law enforcement officer.  This offense differs from Section 520 because it covers false statements made during investigations while the person is not under oath or in official proceedings.

 Subsection (c) provides an exception to liability if the false statement is not material as defined in 520(f)(2).  

               Relation to other laws.  Section 521 is parallel to the prior Penal Code (1966) Provisions

62, 63, 66 and 67.  This Section criminalizes conduct covered by the prior Penal Code (1966) Provisions 62 and 63 but not criminalized by the above Section 520 of this Code.  Provision 62 criminalizes the making of false statements, sworn or not sworn, in investigations as well as in official proceedings.  This Section criminalizes the making of false statements while the declarant is not under oath or in an un-official proceeding, such as an investigation.  The above Section 520 meanwhile limits liability to those false statements made in official proceedings while under oath.  

 Subsection (a) runs parallel with prior Penal Code (1966) Provision 67.  In addition, the materiality requirement in Subsection (c) is also consistent with the materiality requirement in Provision 67.  

The Islamic legal support for this Section is described in the introduction to this Chapter. 

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 64, 65 and 75

Comment:

 Generally.  Section 522 criminalizes the giving of false statements to law enforcement authorities.  Under Subsection (a), a person commits an offense if he gives false information, knowing it to be false, with the purpose of implicating another in criminal activity.  Subsection (b) criminalizes the making of reports to law enforcement authorities relating to offenses that he knows have not occurred or about which he knows he has no information.

 The culpability as to the falsity of the statement in Subsection (a) is higher than the “does not believe to be true” standard in Sections 520 and 521 of this Chapter due to the serious nature of this offense.  Under Section 24(4)(b), a person acts knowingly with respect to a circumstance element if the person is aware that it is probable that such circumstance exists.  Therefore, Subsection (a) requires that a person must be aware that it is probable that the information he is giving is false in order to be found liable rather than merely not believing the information to be true.   

 The grading scheme in Subsection (c) indicates that falsely incriminating another in criminal activity is considered a more serious offense than giving false information to law enforcement regarding offenses the person knows did not occur or information regarding offenses that he knows he knows nothing about.  

 The grading of Subsection (a) is determined by the seriousness of the crime of which the defendant falsely incriminates another.  If a person falsely incriminates another and the other person is convicted of a Class 3 felony or higher, the offense is a Class 5 felony.  Otherwise, the offense in Subsection (a) is a Class 1 misdemeanor.  

 The making of fictitious reports to law enforcement authorities is deemed a less serious crime than falsely incriminating another and is graded as a Class 2 misdemeanor.  

 Relation to other laws.  Section 522 reflects the serious nature of falsely incriminating another and parallels prior Penal Code (1966) Provisions 64, 65 and 75.  However, the grading scheme in Subsection (c) differs from Provisions 64 and 65.  This Section creates a two-tiered grading scheme whereas prior Maldivian law, found in Provision 64, singles out the false incrimination of another in capital offenses.  There is a strong public policy argument for adopting a two-tiered grading structure instead.  First, very few people are convicted of capital offenses in the Maldives and the sentence is rarely executed.  Secondly, false incrimination by one person will rarely be sufficient evidence to convict another of capital punishment.  Lastly, the law should deter individuals from falsely incriminating another of other crimes which are not capital offenses but carry a heavy punishment nonetheless, such as rape and serious assault.  Therefore it is more appropriate to construct a two tiered grading structure which punishes those who falsely incriminated an innocent person and cause that person to be convicted of a Class 3 felony or higher more severely than if a person falsely incriminates an innocent person who was convicted of a Class 4 felony or lower.

            The Islamic legal support for this Section is found in the introduction to this Chapter.

Corresponding Provision(s):  None

Comment:

Generally.  Section 523 makes it an offense to knowingly make a false alarm of emergencies such as fire, floods, landslides and sinking ships.  Subsection 523(a)(1) requires that the perpetrator knowingly make the false alarm.  Thus those who mistakenly report a fire or emergency are excluded from liability.  Subsection 523(a)(2) requires that the perpetrator have transmitted the false alarm to an organization dealing with emergencies.  Thus, someone who calls in a false alarm to a private individual who is not employed or otherwise affiliated with any organization that handles emergencies, would not be liable under this Section. 

 Relation to other laws.  This Section has no counterpart in current statutory law, but there are strong public policy arguments for including this Section.  False alarms of fires and other emergencies distract precious government resources from emergencies where their services are actually needed.  Such false alarms could lead to the loss of life and other severe casualties as well as damage to public and private property.  Thus society should deter such behavior by criminalizing knowingly causing false alarms.

            Islamic legal support for this Section can be found in the commentary to Section 122.

Comment:       

Generally.  This Section collects defined terms used in Chapter 520 and provides crossreferences to the Sections in which they are defined.

 Relation to other laws.  For discussion of the relationship between Chapter 520’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

 This Chapter defines offenses that interfere with the operation of government functions.  It is important for the criminal law to punish actors who prevent the effective implementation of governmental functions, as this impedes the prosperity of society in general.  Acts covered by this Section include resistance or interference with the duties of government actors, providing assistance or aid to fugitives, and acts, which impede the successful operation of government.  This Chapter is supported by Islamic law, which generally encourages actors to respect authority and be law-abiding citizens.[60]  The following Qur’anic precept is used as justification for this:  “Obey God and obey the Prophet and those of authority among you.”[61]  In addition, they also use various ahadith to support this Chapter, including one that states that “it is obligatory for you to listen to the ruler and obey him in adversity and prosperity, in pleasure and displeasure…”[62]

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 32, 33, 35, 41c, 70, 71, 73 and 74

Comment:

Generally.  This provision defines the offense of obstructing justice.  Subsection (a) criminalizes the conduct of an individual who intends to obstruct justice by knowingly using various means to prevent the apprehension, prosecution or defense of a person.  The culpability level required by this Section protects from liability those who unwittingly commit the offense, as in the following example which would be covered by Subsection (a)(1):  The police come to the door of a house looking for Y, but X answers.  X goes inside and tells Y that the police are at the front door, and Y subsequently flees.  If X knows nothing of Y’s past crimes, X lacks the requisite purpose and is not guilty of an offense under this Section.  In contrast, those who act with the purpose of obstructing justice are both dangerous and blameworthy because they weaken the criminal justice system that protects us all.  This Subsection outlines four categories of conduct which satisfy the intended scope Section 530.

 Subsection (a)(1) criminalizes the conduct of an actor who obstructs justice by knowingly warning an offender of impending apprehension for a criminal offense, with the intent of hindering apprehension, prosecution or defense.  This Subsection requires the apprehension to be “impending” in order to reasonably limit the offense definition.  For example, a person who knows of no ongoing investigation would not be liable for warning another that he could be arrested for illegal activity.  The purpose of Subsection (a)(1) is to assign liability to those who hinder the legal apprehension or prosecution of offenders.  Subsection (a)(6) provides a disclaimer to Subsection (a)(1) and protects an individual who alerts an offender of impeding discovery or apprehension with the purpose of guiding them towards apprehension.  Section 530 does not intend liability for an individual acting under these circumstances, as they are promoting the interest of society in guiding the offender to comply with the law.

 Subsection (a)(2) criminalizes acts which intentionally interfere with the collection of evidence, regardless of admissibility or importance.  The destruction, alteration, concealment or disguise of existing evidence, and the creation of new, false evidence are all covered by this Subsection. 

 Subsection (a)(3) criminalizes the act of inducing a witness with pertinent information to hide or disappear.  These types of actions undermine the ability of the criminal justice system to prosecute criminals, and on a larger scale, undermine the legitimacy of the criminal justice system by preventing its efficient and fair implementation.  Bribery, harassment or threats are some ways in which a witness is induced to hide or disappear.  Knowledge in the context of this offense is “material” if it is reasonably likely to affect the guilt or innocence of the person targeted for arrest/prosecution.  In addition, one cannot induce another to “conceal” himself without an affirmative act.  In other words, the mere inability of law enforcement to find the witness does not mean the defendant induced the witness to conceal himself with the purpose of preventing his own apprehension.  Lastly, evidence of an affirmative offer of a benefit should be required to prove such an inducement.

 Subsection (a)(4) criminalizes the acts of an individual who deters a witness from testifying freely, fully, or truthfully.  Individuals who act in this manner are assigned liability for the burden they place upon the criminal justice system and the necessary collection of evidence.    Relation to other laws.  This Section encompasses several provisions from the prior Penal Code (1966) and summarizes their content into one Section.  Provision 32 criminalizes those who conceal the existence of a design to commit an unlawful act against the president or State.  Provision 33 criminalizes, “all forms of rebellion or insurrection” included within the provisions of Section 32.  Provision 35 states that whoever conceals the existence of a design to cause injury to the life of the president or who participates in such a conspiracy in contravention of Law or Shari’ah shall be liable for an offense.  Provision 70 addresses the act of concealing evidence of the commission of an offense or prevention of any person from obtaining evidence, or fabricating statements with the intention to conceal or corrupt.  Provision 71 states that whoever conceals or does any act to prevent any person from obtaining evidence or misleading in that endeavor is guilty of an offense.  Provision 73 states that whoever, in protection or defense of an offender conceals, destroys or causes the loss of a document that is required for a judicial proceedings or before a competent official authorized by law for the purposes of administering justice is guilty of an offense.  Provision 74 deals with those who conceal “any property or document relating to property or causes its disappearance or destruction, or transfers its ownership to another person knowing that such property maybe forfeited or such forfeiture is likely to occur.”  Finally, Provision 41(c) provides a definition for “concealment” as the failure to give notice of a known criminal act (under the respective sections) to proper government officials, for example a police officer, an atoll officer, or the minister of justice.

 Islamic law supports this Section with its broad condemnation of “sheltering” or “protecting” the “guilty” because such conduct could prevent people from being compensated for the rights that were taken from them.[63]     

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 88(17) and 88(18)

Comment:

 Generally.  This section criminalizes the failure to report a vehicular accident.  A person is liable under this offense if he is involved in a vehicular accident on either sea or land and does not report the accident to the appropriate authorities.  

 Subsection (b) grades the offense as a Class 2 misdemeanor but will be punished one grade higher at a Class 1 misdemeanor if someone sustained serious bodily injury in the accident which was not reported.  Serious bodily injury is defined in Section 17(91).

 Relation to other laws.  This Section parallels Provisions 88(17) and 88(18) of the prior Penal Code (1966). 

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 33, 54, 61, 86,

88(10) and 88(11)

Comment:

Generally.  This provision criminalizes resisting, obstructing, or interfering with a law enforcement officer or custodial officer.

            Subsection (a) of this offense divides the elements of the offense into two parts.

Subsection (a)(1) prevents an individual from knowingly resisting, obstructing or interfering with an authorized act being performed by a person acting within their official capacity.  Official capacity refers to the actions described in Subsection (b)(2).  Authorized acts shall be defined by laws and regulations governing an officer’s duties and responsibilities.  Any disobedience of an authorized order is per se resistance.  Knowledge of a person’s official capacity is presumed once the official identifies himself.  Subsection (a)(2) qualifies the action of Subsection (a)(1) by specifying that the interfering individual must be knowledgeable as to the position of the person with which they are interfering, as a law enforcement officer or a custodial officer.  This is intended to protect from liability the actor who is negligent or reckless in this regard.  The criminal law does not hold those who are negligent or reckless accountable because they fail to satisfy the requisite mens rea for blameworthiness.

 Subsection (b)(1) defines the term “custodial officer” as any person employed to supervise and control inmates incarcerated in, or in the custody of, a correctional institution.  This definition includes prison guards, privately hired security personnel and any others serving in the capacity defined.  Prison doctors, psychologists, legal staff, cafeteria and sanitation workers are not included in this offense definition.  Alternatively, Subsection (b)(2) defines a “custodial officer” as a person employed to supervise and control persons who have been civilly committed or are being detained awaiting civil commitment. 

 Relation to other laws.  Several provisions of Maldivian Law provide strong support for the criminalization of Resisting or Obstructing a Law Enforcement Officer or Custodial Officer, particularly Provisions 88(10) and 88(11) of the prior Penal Code (1966).  Provision 88(10) makes it illegal to disobey an order given by a police officer.  Provision 88(11) makes it illegal to disobey orders given by Atoll and Island Offices.  

 Additionally, Provision 33 of the prior Penal Code (1966) outlaws all forms of rebellion or insurrection against the State, as described in the commentary for Section 530.  Provision 34 of the prior Code addresses those who threaten or obstruct any person authorized by law in an attempt to prevent or resist persons from committing an act mentioned in Section 530.  Provision 61 of the prior Penal Code (1966) outlaws disobedience to the directive of the Government or any other competent authority.  Provision 86(a) outlaws the intentional obstruction of the “due discharge of functions by a public servant not by assault,” while Provision 86(b) provides an aggravation for a crime under Provision 86(a) committed by assault.  

 There is also Islamic legal support for this Section.  The act of obstruction is prohibited based on the justification discussed in the commentary to Section 530.  Islamic law further prohibits carrying out such an act against a representative of the government.  The offense described in this provision is consistent with Islamic law which urges Muslims to be law-abiding citizens.    

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 33, 34, 36, 40, 86,88(11) and 102; Rules Relating to the Conduct of Judicial Proceedings, Provision 243

Comment:

Generally.  This provision criminalizes intentionally interfering with governmental functions by physical means, breach of an official duty, or an unlawful act.

 Subsection (a)(1) defines the initial act of obstruction, impairment or perversion of the administration of law or other governmental functions.  In order to assume liability, a culpability standard of knowing is assigned to the actor being charged under Section 532.  This prevents a reckless or negligent actor from being assigned liability.  

 Subsection (a)(2) elaborates on Subsection (a)(1) by specifying which particular actions of obstruction, impairment or perversion satisfy the standard for the purposes of Section 532.  Subsection (a)(2)(A) states that any unlawful act satisfies the act requirement for the purposes of Subsection (a)(1).  Unlawful acts include both civil and criminal offenses.  “Official duty” means any duty so designated by law.  This offense definition includes obstruction by a substantial physical interference such as an unlawful obstacle, or a breach of an official duty that stands as an impediment to the administration of the law.  In committing this conduct, it is necessary that the actor satisfy the culpability requirement by being knowledgeable as to the interference, but not necessarily as to the unlawfulness of the act.

Subsection (a)(2)(B) prohibits failing to report income, revenue, or other information for which reporting is required by law to revenue officers or other public officials who collect taxes. 

Subsection (a)(2)(C) prohibits failing to pay taxes or duties owed by law.

 Subsection (b) provides a definition of “public official.”  It includes members of the Legislature (or People’s Majlis), Judiciary and Executive.  It also includes independent institutions are those mentioned in the Constitution (2008).  Finally, the definition notes that individuals contesting elections for positions in government also fall within this category.

Subsection (c) grades this offense as a Class 1 misdemeanor.

 Relation to other laws.  This Section parallels several provisions of the prior Penal Code (1966).  Provision 86 provides the greatest support in that it criminalizes the intentionally obstruction of “due discharge of functions by a public servant. . .”  Additionally, Provision 33 makes all forms of rebellion or insurrection against the government or authority illegal, as described in Section 530 and 532 of this Code.  Provision 34 of the prior Code (1966) outlaws “conspir[ing] to cause injury to the life of the President in contravention of Law or Shari’ah.”  Provision 36 outlaws the act of anyone who “causes [harm] to the life of the President in contravention of Law or Shari’ah.”  Provision 40 makes it illegal to conspire to prevent or obstruct the duties of a Presidential appointee.  Provision 88(11) outlaws disobeying orders given by Atoll and Island Offices.

 Subsection (a)(2)(B) is consistent with Provision 243 of the Rules Relating to the Conduct of Judicial Proceedings.  Provision 243 criminalizes the battery of a member of the

National Security Service and considers such an offense a disruption of public peace.  Provision 243 has been accounted for in the “Interference with Governmental Operations” Chapter instead of the “Public Order and Safety” Chapter. 

 Lastly, conduct prohibited by Provision 102 of the prior Penal Code (1966), Disobedient to Quarantine Rules, is also encompassed by the offense in this Section.

              The Islamic legal support for this Section can be found in the commentary to Section 532.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 40

Comment:

Generally.  This provision criminalizes resisting or obstructing the service and execution of legal processes and court orders.  

 Subsection (a) criminalizes the act of an individual who knowingly impedes the service of process.  This includes the resistance or obstruction of court orders, and the hindrance of the execution of any civil or criminal process. In order to impede, an actor must be proactive in hindering service of process.  For example, fleeing a process server who has confronted you constitutes resistance and is an offense under this Code.  In contrast, avoiding service of process by staying away from home is not resistance or obstruction, unless the person leaves the country or covertly establishes a new residence.  However, a person is guilty under this Section if he commits an offense like fraud in an effort to shield his assets from being seized to satisfy a judgment.  Additionally, "authorization" for process and court orders must exist in some statute or statutorily-enabled rule.  

 Relation to other laws.  This Section is parallel to Provision 40 of the prior Penal Code (1966), which makes it a crime to conspire to prevent or obstruct the duties or exercise of power in the form of discharging the functions of law as laid out in the Constitution of a Presidential appointee.  Provision 40 addresses a broader range of criminal activity, but this Code provides a more specific definition and limits liability to those who knowingly resist or obstruct the execution of criminal and civil court processes or orders of court.  There is a strong public policy argument for limiting liability in this way.  Obstructing justice in the manner defined by this Section is a crime which in particular has the capability of undermining the effectiveness of the criminal justice system by impeding its progress.  Thus a more specific definition is desirable.    The Islamic legal support for this Section can be found in the commentary to Section 532.   

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 61 and 88(10)

Comment:

Generally.  This provision criminalizes knowingly failing to provide reasonable assistance to a law enforcement officer in apprehending a person or preventing an offense.

 Subsection (a)(1) defines the initial requirement of the offense: that there actually has to be a request made by an officer.  In order to be liable for this offense, a person need only be reckless as to whether an officer has made a request.  Such a request can be reasonably interpreted from a spoken, written or nonverbal communication intending to transfer information from the officer to the offender.  It is important to note that absent a request, there in no general duty to aid a police officer.

 Subsection (a)(2)(A) criminalizes the acts of an individual who satisfies Subsection (a)(1) and further knowingly fails to provide reasonable help to a police officer in enacting a legal apprehension.  The standard of reasonable aid is important, and does not require that an individual necessarily risk harm or death to themselves.  The reasonableness shall be judged in the context of the situation.

 Subsection (a)(2)(B) is similar to (a)(2)(A), but criminalizes the conduct of an actor who knowingly fails to provide reasonable help to a person they know to be a police officer in preventing the commission of a crime.  Because recklessness is the relevant culpability requirement, it is necessary for the person to be aware of a substantial and unjustifiable risk that it is an offense the officer wants to prevent.  Reasonable aid is defined as aid that does not put the person at risk of serious bodily injury to himself.  

 For the purposes of this Section, law enforcement officer has the same meaning as its definition in Section 521(d).  The definition is broad, so as to be inclusive of a broad range of officers.  This promotes the general interest of society by making the prevention of criminal conduct a common bond among members of society.  

 Relation to other laws.  Support in existing Maldivian law for Section 535 can be found in two Sections of the prior Penal Code (1966).  Provision 61 outlaws acts of disobedience to governmental directive or competent authority.  In a similar regard, Provision 88(10) outlaws disobeying an order given by a police officer.  These two Sections are of similar scope and provide strong support for the criminalization of a refusal to aid an officer.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 76, 77, 78, 80, 83 and 88(23)

Comment:

Generally.  This provision defines an offense criminalizing harboring, aiding, or concealing a fugitive for the purpose of preventing apprehension.

 Subsection (a)(1) requires that an offender act with the intent to prevent the apprehension of an offender.  In assigning culpability, it is important that the offender satisfy the intent requirement to prevent the assignment of guilt to an individual who unknowingly happens into the circumstances of this offense.  An example of this may the individual who allows a friend to stay at their residence for an extended period, without the knowledge that the individual is staying there with the purpose of avoiding lawful apprehension.

 Subsection (a)(2) requires the physical act of harboring, aiding or concealing an offender.  This may include, but is not limited to, providing housing, transportation or sustenance to a fugitive (when the person acts with the purpose required in Subsection (a)(1)).

 Subsection (a)(3) qualifies Subsections (1) and (2) by providing a disclaimer that protects from liability any individual who would otherwise satisfy the requirements of these Subsections, but because of a close familial relationship is excluded from liability.  Explicitly, a spouse, parent, child or sibling is protected from liability under Section 536.  

 Subsection (b)(1) grades the offense as a Class 5 felony if the offender being aided or concealed is charged with a felony.  It is probable that a felon presents a danger to society by the nature of their criminal classification, and thus justifies the harsher punishment for an individual who aids or conceals them.

 Subsection (b)(2) grades an offense as a Class 1 misdemeanor if the offender being aided or concealed is not charged with a felony.  Concealing or aiding a fugitive who has been incarcerated for a misdemeanor or less is not as heinous a crime, and does not present the same danger to society that concealing or aiding a felon does.

 Relation to other laws.  Section 536 parallels a number of provisions of Maldivian law.  Provision 76 of the prior Penal Code (1966) criminalizes giving assistance to an offender for the “purpose of screening him from legal punishment.”  The standard for grading an offense under this part of the prior Code is similar in structure to that used in Section 536, as grading for the offense is classified by the severity of the crime attributed to the aided or concealed offender.  Additionally, Provision 77 of the prior Penal Code (1966) criminalizes the acceptance of bribes, rewards, or gifts.  Provision 78 makes it a crime to conceal an escapee and not alert the proper authorities and provides a grading scale similar to the one in this Section.  Unlike Provision 78 however, this Section does not require a person to take affirmative action to notify the authorities of a fugitive whereabouts.  This is because this Code does not generally criminalize omissions but rather focuses on criminalizing affirmative actions.

Tangentially related provisions of Maldivian law include Provision 80 of the prior Code (1966), which makes it illegal for a public servant to intentionally commit an unlawful act for purposes of saving a person from due punishment; Provision 83, which outlaws the general obstruction of a lawful apprehension; and Provision 88(23), which defines the crime of assisting a convict in escaping.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 39, 83, 84, 88(1), 88(2) and 88; Criminal Court Circular 07/SP/2003

Comment:

Generally.  This provision criminalizes escaping from custody, failing to report to a place of detention or for periodic detention, failing to return from release to a place of detention if that is required in the punishment, and failing to abide by the terms of home confinement.

 The offense definition for Subsection (a) is two parts.  Subsection (a)(1) defines a variety of circumstances under which an offender might be subject to liability under Section 537.  Subsection (a)(2) details different types of actions for which a person can be liable for knowingly undertaking them.  

 Subsection (1)(A) states that a person in penal custody pursuant to a conviction or charge for an offense could potentially face liability under this Section.  Subsection (a)(1)(B) states that a person in the lawful custody of a law enforcement officer could potentially face liability under this Section.  Subsection (a)(1)(C) states that a person civilly committed, or detained by the government awaiting civil commitment could potentially face liability under this Section.  Subsection (a)(2)(A) assigns liability to an individual who satisfies the requirement of Subsection (a)(1) and knowingly escapes from the place of detention or from the penal custody of an employee of that institution.  Subsection (a)(2)(B) assigns liability to an individual who satisfies the requirement of Subsection (a)(1) and knowingly fails to report to the place of detention or to report for periodic detention at the time required.  Subsection (a)(2)(C) assigns liability to an individual who satisfies the requirement of Subsection (a)(1) and knowingly fails to return from furlough or from work or day release.  Subsection (a)(2)(D) assigns liability to an individual who satisfies the requirement of Subsection (a)(1) and knowingly fails to abide by the terms of home confinement.

 Subsection (b) defines the term “penal custody” and “correctional institution” for the purposes of this Section.  Subsection (b)(1) defines penal custody as lawful custody of the State, and an outline is provided in five sub-parts to Subsection (b) to prevent ambiguity as to what is meant to be included.  Subsection (b)(1)(A) includes pretrial incarceration or detention following arrest as lawful custody of the State for the purposes of this Section.  Subsection (b)(1)(B) includes incarceration or detention under a sentence or commitment to a State or local correctional institution as lawful custody of the State for the purposes of this Section.  Subsection (b)(1)(C) includes parole or mandatory supervised release as lawful custody of the State for the purposes of this Section.  Subsection (b)(1)(D) includes home detention as lawful custody of the State for the purposes of this Section.  Subsection (b)(1)(E) includes probation as lawful custody of the State for the purposes of this Section.  

 Subsection (b)(2) defines correctional institution as an institution or place for the incarceration or custody of persons.  Subsection (b)(2)(A) makes the incarceration or custody of a person serving a sentence for a criminal offense applicable for the purposes of the definition.  Subsection (b)(2)(B) makes the incarceration or custody of a person awaiting trial or sentence for a criminal offense applicable for the purposes of the definition.  Subsection (b)(2)(C)(aa)-(dd) makes the incarceration or custody of a person under arrest for an offense, a violation of probation, a violation of parole or a violation of mandatory supervised release applicable for the purposes of the definition.  Subsection (b)(2)(D) makes the incarceration or custody of a person awaiting a bail setting hearing or preliminary hearing applicable for the purposes of the definition. 

Subsection (c) grades offenses committed under this Section in three separate categories.  Subsection (c)(1) grades an offense committed under Subsection (a)(2)(A) as a Class 4 felony.  This is the most serious offense under Section 537 because it involves an individual who has been explicitly prevented from interacting with society.  It is probable that this person presents the greatest danger to society, and thus justifies the harsher punishment for an individual who commits this offense.

 Subsection (c)(2) grades an offense committed under Subsection (a)(2)(B)-(D) as a Class 5 felony, if the underlying offense is a felony.  This grading is higher in correlation to the seriousness of the offense that the offender has escaped from punishment for.  If the underlying offense is a felony, society views this person as a significant risk.  This increased risk justifies an upward grading for those who violate this Section under these circumstances.

            Subsection (c)(3) grades all other offenses committed under this Section as Class 1 misdemeanors.

 Relation to other laws.  While not directly addressed by Maldivian law, Section 537 finds precedent in five places.  Provision 83 of the prior Penal Code (1966) criminalizes the general obstruction of apprehension. Provision 84 of the prior Code outlaws the return from exile.  Provision 88(1) of the prior Penal Code (1966) and Criminal Court Circular 07/SP/2003 criminalizes the violation of a house arrest.  Provision 88(2) makes it a crime to change islands during banishment.  Provision 39 of the prior Penal Code (1966) makes it a crime for an authority figure to negligently allow the escape of an offender.  All of these provisions have the same intent as Section 537:  criminalizing escaping from custody in general, and specifically for failing to report to a place of detention or for periodic detention, failing to return from release to a place of detention, or failing to abide by the terms of confinement.  

 However, Section 537 departs from Maldivian law in that it punishes this offense more severely than in the Criminal Court Circular 14/SP/2003.  This Code punishes the offense more severely because both the effectiveness and the credibility of the criminal justice would be severely jeopardized if prisoners routinely escaped or otherwise avoided their sentences.  In addition, the grading of this Section is in accord with the grading of other Sections within Chapter 530, all of which address similar behavior which interferes with governmental operations.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 39, 80, 82 and 88(23)

Comment:

Generally.  This provision defines an offense for correctional employees who recklessly permit prisoners in their custody to escape.   

 Subsection (a) defines the offense of “Permitting Escape” in two parts.  The first part, Subsection (a)(1), generally addresses the offense as it concerns an outside party, while the second part, Subsection (a)(2), addresses the action of an individual who does not necessarily help create the escape, but fails in their official duty to prevent it from happening.  Subsection (a)(1) criminalizes the act of causing or facilitating the escape of a prisoner.  Offenders punishable under this Subsection have been proactive in permitting the escape of a convict, and are punishable according to the severity of that action.  Examples of this might include, but are not limited to, an actor who physically frees an incarcerated inmate, an actor who provides jail cell keys to an inmate, or an actor who pays another individual to allow an inmate to escape.

 Subsection (a)(2) criminalizes the act of a correctional officer who permits a prisoner in his custody to escape.  This Subsection criminalizes inaction, the failure of a correctional officer to follow through on an affirmative duty to prevent prisoners from escaping from their charge.  Subsection (b) provides a two-part definition for the term “correctional employee.”  Subsection (b)(1) defines a “correctional employee” as any elected or appointed officer, trustee, or employee of a correctional institution or of the governing authority of the correctional institution.  Subsection (b)(2) defines a “correctional employee” as any person who performs services for the correctional institution pursuant to contract with the correctional institution or its governing authority, including a custodial officer.

Subsection (c) grades the offender’s conduct based upon the severity of the offense that the escapee was incarcerated for.  The grading in this Section is based upon the danger that the escapee presents to society.  By the nature of their criminal classification, a felon most likely presents the greatest danger to society upon escape.  It is understandable then, that those who permit felons to escape should be punished more severely.  Subsection (c)(1) grades an offense under Section 538 as a Class 1 misdemeanor if detention was based upon a felony.  

 Subsection (c)(2) grades an offense under Section 538 as a Class 2 misdemeanor if detention was based upon a misdemeanor.  

 Relation to other laws.  There are four provisions of the prior Penal Code that provide precedent for this Section.  Provision 39 makes it a crime for an authority figure to negligently allow the escape of an offender.  This Section departs slightly by setting the culpability requirement for the offense as recklessness in Subsection (a)(2) because this Code generally reserves negligence for civil rather than criminal provisions.  

 Provision 80 of the prior Penal Code (1966) criminalizes the act of a public servant who intentionally commits an unlawful act for purposes of saving a person from due punishment.  Provision 82 of the prior Penal Code (1966) makes it a crime for a public servant to allow an offender to escape.  Similar to Section 538, the grading of this offense is on a sliding scale based upon the severity of the offense committed by the escapee.  Provision 88(23) outlaws the assistance of a convict in escaping.  Section 538 consolidates these existing examples of law.  In doing so, they are not materially altered, but their scope is expanded in order to account for more varied circumstances.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(24)

Comment:

Generally.  This Section protects the safety and order of correctional institutions by criminalizing bringing contraband into a correctional institution, placing contraband close enough to a correctional institution that an inmate may access it, or an inmate possessing contraband.

Subsection (a) defines this offense as an unauthorized, knowledgeable act with an item of contraband.  It is important to clarify that an offender only needs to be knowledgeable about bringing the item; he need not know that the item is contraband.  

This Subsection is defined in three parts:  

 Subsection (a)(1) criminalizes the act of knowingly bringing an item of contraband into a correctional institution without having authorization to do so.  This might include, but is not limited to, a friend of an offender who brings a knife or hacksaw to give to them inside of prison, or a family member who brings alcohol to their relative in prison without receiving permission from prison officials. Subsection (a)(2) criminalizes the act of an individual who knowingly places an item of contraband in a location in such proximity to a correctional institution so as to give an inmate access to it without having authorization to do so.  Subsection (a)(3) criminalizes the conduct of an actor who knowingly possesses an item of contraband within a correctional institution without having the authorization to do so.

 Subsection (b) defines the term “item of contraband” for the purposes of this Section.  Eleven explicit categories or contraband are provided to prevent any ambiguity as to the scope of this definition.  

 Subsection (b)(1) includes a firearm, stun gun or taser as an item of contraband.   Subsection (b)(2) includes firearm ammunition, including anything that could be adapted to be used in firearm.  

 Subsection (b)(3) includes catastrophic agents.  “Catastrophic agent” has the meaning given in Section 121(c)(1).  This includes any type of substance, chemical, bacterial or otherwise, that has the capability of causing harm.   

 Subsection (b)(4) includes controlled substances.  The scope of this will depend upon Maldivian Statutory law.  “Controlled drug" is a drug that is listed on the Maldives classified drug list.  “Controlled substance” has the definition given in Maldivian law.  

 Subsection (b)(5) includes instruments adapted for the use of controlled substances.  This would include needles, pipes or drug paraphernalia.  “Instruments of Crime”, as defined in Section 87(b) are also included in the definition of controlled substances.  Subsection (b)(6) includes dangerous weapons.  This is left broad, and is meant to include anything that could be used as a weapon including altered or misshaped common items such as a shaved toothbrush. 

"Dangerous weapon" has the meaning given in Section 120(d)(1). 

 Subsection (b)(7) includes tools lock-picking tools and other items with the capability of defeating security mechanisms.  This definition is adaptable and may vary from case to case depending upon the type or kind of security mechanism in question and the innovation of criminality.  These items are "instruments of crime" under Section 87(b).  

 Subsection (b)(8) includes cutting tools such as wire cutters or hacksaws, or any other tool with the capability of cutting through metal.  

 Subsection (b)(9) includes electronic equipment.  This may include communication devices as well as audio or video recording devices and computer equipment.  Criminality may vary depending upon the circumstances, and correctional authorities should outline which electronic items are considered contraband in respective correctional facilities.   

            Subsection (b)(10) includes alcoholic beverages.  

 Subsection (b)(11) includes any other items that do not fall within the above categories, but have been expressly prohibited by the correctional institution in question.  

 Subsection (c) grades the offense and provides for an aggravation to the grading depending on the circumstances of commission of the offense.  Subsection (c)(1) divides the grading of the offense into three parts, depending upon the contraband involved in its commission.  

 Subsection (c)(1)(A) defines the offense as a Class 4 felony if it involves contraband outlined in Subsection (b)(1)-(3).  Firearms and catastrophic agents are the items of contraband that have the potential to create the greatest amount of harm, and thus their introduction or allowance is graded the most severely.  It is obvious that, for example, if a handgun or knife were given to a prisoner there would be a serious potential for harm to inmates and prison employees alike.

 Subsection (c)(1)(B) defines the offense as a Class 5 felony if it involves contraband outlined in Subsections (b)(4)-(10).  The importance of preventing prisoners from obtaining tools to facilitate escape or illegal substances, for example, justify the grading of this Subsection.  

 Subsection (c)(1)(C) defines the offense as a Class 1 misdemeanor if involves contraband other than that described by Subsection (b)(1)-(11), but within the meaning of (b).  The most commonly recognized forms of contraband all are contained in Subsection (1)-(11), classifications which address all of the most egregious forms of contraband.  It is important to recognize, though, that items that a particular correctional facility may object to may not be universally recognized.  The purpose of the grading of this Subsection is to recognize the criminality of this conduct imposed by correctional facilities, while at the same time recognizing that it falls outside of the bounds of universally recognized contraband and thus deserves a lesser punishment.

 Subsection (c)(2) provides an aggravation to the grading if a correctional employee commits the offense.  This act is more egregious because it undermines the legitimacy of an official duty, and thus the offense is one grade higher than it otherwise would be.

 Relation to other laws.  Section 539 is similar to Provision 88(24) of the prior Penal Code (1966), which makes it a crime for a convict to bring contraband into the jail.  However, this Section expands upon Provision 88(24) by including persons who not only bring contraband into a jail, but also those who bring contraband close enough to a jail so that a criminal may have access to it.  This expansion is a logical outgrowth of the existing provision in that it stems from the same interest in preventing criminals from obtaining certain objects.   

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 121 and 122; Law on

General Elections, Provision 26 (Law No: 5/81 AH)

Comment:

            Generally.  This offense criminalizes performing certain conduct that harmfully interferes with a witness, voter or other person performing a public duty.

 Subsection (a) defines the offense in two parts.  The first part, Subsection (a)(1), defines the intent required of an actor to satisfy culpability under this Section.  The second part, Subsection (a)(2), defines the act requirement of this Section.  In order to be guilty of an offense under Section 540, an individual must satisfy both the intent required in Subsection (a)(1) and the conduct required in Subsection (a)(2).

Subsection (a)(1) defines the offense in terms of the offender’s intention and is divided into two parts. 

 Subsection (a)(1)(A) requires the intent to deter a party or witness from testifying freely, fully or truthfully in any legal proceeding.  Any conduct that violates Subsection (a)(1) and that affects a party’s or witness’ testimony will trigger liability.

 Subsection (a)(1)(B) requires the intent to annoy, harass, intimidate, or victimize a witness, voter, or other person because of that person’s past, present, or potential future testimony, vote or other act or omission related to performance of duties.  Annoyance is defined as non-consensual conversation. For example, if X is talking to a former witness about her experience, X cannot commit an offense if the witness is willing to discuss a topic.  However, X would be guilty of an offense if the witness expressly denies consent by stating that she does not want to talk about a topic and X persists in conversing with her on the matter.

 Subsection (a)(2) defines the offense in terms of the offender’s conduct.  Three different sub-parts are provided in order to differentiate the severity of conduct.

Subsection (a)(2)(A) requires that an offender commit, or threaten to commit, any offense likely to cause serious bodily injury, unlawful confinement or restraint, or substantial property damage to another.  Such offenses include those codified in Sections 120(c)(1), 140 and 220(d)(4).

 Subsection (a)(2)(B) requires that an offender commit or threaten any other offense.  Subsection (a)(2)(C) requires that an offender offers or gives a benefit not authorized by law.

 Subsection (a)(2)(D) requires that the offender communicates, directly or indirectly, with a witness, voter, or other person in a manner prohibited by law.  For example, if someone were to circumvent court rules by talking to a witness outside of the courtroom, he would be guilty of an offense under this Subsection.

 Subsection (b) grades the offense in three subparts, with the grade varying depending upon the severity of the conduct committed, as defined in Subsection (a)(2).  It is important to recognize the interest society has in protecting public servants, witnesses, and voters from harm, threat of harm or fear of offensive conduct.  Harm or fear could compromise the decision-making of any of these positions, and hurt the interest society has in these positions being freely exercised.

Subsection (b)(1) grades the offense committed in Subsection (a)(2)(A) as a Class 4 felony.  This conduct is the most serious, involving serious damage or harm, and thus is graded higher.

 Subsection (b)(2) grades an offense committed in Subsection (a)(2)(B) and (a)(2)(C) as Class 5 felonies.  The threat or commission of criminally offensive conduct justifies the felonious classification of this offense.

 Subsection (b)(3) grades all other offenses committed under this Section as Class 1 misdemeanors.  This is still a significant offense, but lacks the severity of threatening behavior and thus justifies a lesser sentence.

 Relation to other laws.  This Section expands the offense found in the prior Penal Code (1966) Provision 121, which prohibits the intimidation of voters; and Provision 26(a) of the Law on General Elections, which provides that it is an offense to obstruct or hinder a person from voting.  The expansion of these laws is essential because the only way to protect the legitimacy of a criminal justice system is to prevent the use of improper influence on a witness or public servant.  If such actions were allowed, they would completely undermine the justice system.  

In addition, honest and reliable testimony is considered crucial to the administration of justice under Islamic law.[64]  This principle can, consistent with general Islamic legal principles, be extended to all persons associated with court proceedings.  Islamic law supports Subsection (a)(1)(A) by prohibiting influence on the performance of judicial duties.[65]  Islamic law also supports Subsection (a)(1)(B) under rules prohibiting aiding a false testimony.[66]  Islamic legal support for Subsection (a)(1)(C) and Subsection (a)(2) is found in the commentary to Section 55 and 141.

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings Provision 20, 24, 116 and 207

Comment:

Generally.  This offense applies to a defendant who has been released from custody and later fails to appear in court on the appointed date or violates a condition of his release.

 Subsection (a)(1) defines this offense for an individual who has been admitted to bail for appearance before a court or released on personal recognizance in two instances.  Subsection (a)(1)(A) criminalizes the failure to appear on a date directed.  Subsection (a)(1)(B) criminalizes the violation of a condition of release.  Note that only judges have the authority to set court dates or impose conditions of release.  Subsection (a)(2) further ensures compliance with court orders and promotes the unobstructed administration of justice by requiring defendants and witnesses to appear and produce documents as ordered by the court.

 Subsection (b) grades the offense on a sliding scale to be one grade lower than that of the underlying offense.  A cap is placed preventing this offense from being higher than a Class 1 misdemeanor.  While this conduct is considered blameworthy, it is not so egregious as to be considered more serious than the underlying offense or, regardless of the underlying offense, felonious.  

 Relation to other laws.  Subsection (a)(1)(A) punishes roughly the same conduct as Provisions 20, 24 and 116 of the Rules Relating to the Conduct of Judicial Proceedings.  Subsection (a)(1)(B) punishes conduct not specifically punished under Maldivian law, but it closely resembles Subsection (a)(1)(A), and is a natural outgrowth of the prohibition on conduct found in the Rules Relating to the Conduct of Judicial Proceedings.  

 This Section does not punish the conduct punished by Rules Relating to the Conduct of Judicial Proceedings, Provision 207 or address the case of a defendant who refuses to remain in court to hear its judgment.

Under Islamic law procedures for prosecution are considered to be within the “delegated powers” (siyasah shari’a) of the State.[67]

Comment:

Generally.  This Section collects defined terms used in Chapter 530 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between the terms defined in Chapter 530 and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

OFFENSES AGAINST PUBLIC ORDER, SAFETY, AND DECENCY

 This Chapter defines offenses which are damaging to public order and safety.  The underlying assumption is that the government should play a role in suppressing activities which threaten the safety and well-being of the general public.  Thus, Prostitution, Promoting Prostitution, Obscenity, Abuse of Corpse, and Sale of Human Body Parts are all offenses defined  in Chapter 620, governing Public Indecency.  

 There are also some offenses which may have secondary effects on public safety that are contained in other Chapters of this Code.  Quarantine, Hazardous Food, Drink, Drug, or Medical Substance offenses are found in Section 121, governing Reckless Endangerment.  Importing Weapons is found in Chapter 710, governing Weapons Offenses.  Pedestrian Traffic is addressed by obstruction of government officers, in Section 532 and 533, governing the obstruction of a law enforcement officer and administration of law, respectively.  

This Chapter does not criminalize apostasy, or the abandonment of one’s religious faith, for several reasons.  First, because apostasy is not criminal under prior Maldivian law, prevailing Maldivian norms do not appear to require its punishment.  Second, there exists disagreement among Muslim jurists as to whether apostasy is a hadd offense with many prominent voices arguing that it is not.[68]  Third, international resolutions define freedom of religion as including freedom to change one’s religion or belief.[69]  Similarly, this Chapter offers a narrow definition for the crime of criticizing Islam for two reasons.  First, Muslim jurists generally support free debate within Islamic society.[70]  Second, society’s sanctioning of someone for making comments which disparage Islam should provide sufficient deterrence and reprimand without having to rely on the criminal justice system.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 29, 46, 48, 49, 50, 51, and 56; Law Relating To The Protection Of Religious Unity Among Maldivian Citizens

Comment:

Generally.  This Section defines what constitutes rioting or the forceful overthrow of the government.  Subsection (a) defines the offense broadly as any incitement, aiding, or engaging in rioting or the violent overthrow of the government.  Subsection (b) exempts peaceful assembly from this offense.  

Subsection (c) introduces a grading scale to account for the various levels of seriousness this offense may entail.  Thus, it is a more serious offense to organize a riot or scheme to overthrow the government than it is to participate in the same.  Likewise, it is a more serious offense to engage in any way in the forceful overthrow of the government than to engage in rioting.  An example of violent overthrow of the government would be an assembly of armed people storming the parliament with intent to overthrow the government.  An example of a riot would be an assembly of people looting businesses, stores, and government offices.

 Note that a defendant cannot be charged under both Section 611 and Section 612 because recruitment of mercenaries is a lesser offense and is included in the definition of violent overthrow of the government. 

 Relation to other laws.  This Section follows several Provisions of the prior Penal Code (1966), namely Provisions 29, 37 and 38 (acts against the State), 46 and 48 (unlawful assembly), 49 (armed unlawful assembly), 50 (use of force or violence), 51 (use of deadly weapon), and 56 (encouraging unlawful assembly).

 Some behavior criminalized by the above listed laws is omitted from this Section.  First, riots or attempts at violent overthrow that are accompanied by the looting of private or public facilities, behavior addressed by the prior Penal Code (1966), Provision 59, is addressed in this Code by charging the perpetrator with both Rioting and Theft.  Second, assembling to commit an offense, addressed by the prior Code Provision 46, is addressed in this Code by Section 82, governing Conspiracy.  Third, there is no specific aggravating factor for carrying arms or using force or violence because defining the offense as the “forceful overthrow” of the government includes any sort of use of violence to achieve revolutionary ends, including the use of weapons (replacing prior Code, Provision 49).  

 In addition, in order to streamline the offense defined by this Section, there is no aggravation for continuing to attend a riot or attempt at violent overthrow after it has been commanded to disperse.[71]  This has been omitted because of the evidentiary problems entailed in proving such an aggravating factor.  Also, while Provision 55 of prior Penal Code (1966) makes it illegal to fail to report a riot or violent overthrow, this Code does not criminalize such a failure to act.  This is because this Code does not generally criminalize the failure to act where the defendant does not already possess a duty to do so.  Finally, benefiting from an attempted overthrow or riot, addressed by the prior Code, Provision 57, is not included in the offense definition because Section 82 of this Code, governing conspiracy, addresses situations where several people conspire to commit an offense.   

                                 Generally speaking, Islamic law discourages change in government by extra-

constitutional means.[72]  Further support for this Section can be found in the commentary to Chapter 530 and 730.

Corresponding Provision(s):  None

Comment:

Generally.  This Section defines what constitutes the recruitment of mercenaries.  Subsection (a) defines the offense as any recruiting, financing, or training of mercenaries.  Subsection (b) provides a comprehensive definition of mercenary.  Note that a defendant cannot be charged under both Section 611 and Section 612 because recruitment of mercenaries is a lesser offense and is included in the definition of violent overthrow of the government. 

 Relation to other laws.  While no provision of prior Maldivian law directly addresses the recruitment of mercenaries, several provisions provide support for this Section.  First, prior Penal Code (1966) Provisions 29 and 37 prohibit action against the State.  Second, Provision 37 criminalizes acts committed against the Maldives whether those acts were done within the Maldives or outside of the Maldives.  Maldivian norms therefore support this prohibition.

 Moreover, there are strong public policy argument in favor of including this Section.  First, the recruitment, use, financing and training of mercenaries violates principles of international law, such as those of sovereign equality, political independence, territorial integrity of States and self-determination of peoples.[73]  In addition, studies show that collaboration between drug traffickers and mercenaries undermine the constitutional order of States.[74]  

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 75, 150 151, 152, 153,

154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165 and 166; Rules Relating to the

Conduct of Judicial Proceedings, Provision 257

Comment: 

Generally.  Section 613 criminalizes “false accusations of unlawful sexual intercourse” (qadhf).  This Section defines such an accusation as the making or repeating of a false statement, representing it to be true and the statement makes an accusation of unlawful sexual intercourse as defined in Section 411 of this Code.  Please refer to the commentary for Section 410 for discussion of what constitutes unlawful sexual intercourse.  

The culpability requirement for this offense is “knowingly” because criminal liability for false accusations should be imposed only for a clearly intended harm.  Liability for this offense is limited to false statements.  Liability for statements that are true and yet still defamatory is better addressed in the civil system.  Please refer to the commentary for Section 13, which expressly provides that this Code does not affect civil suits and judgments. 

Subsection (b) grades the offense as a Class 4 felony in recognition of the harm that such false accusations cause to society.  In addition, Subsection (b)(2) includes an additional punishment of 80 lashes.  Lashes are defined in Section 411(f)(3) and are primarily symbolic.

Relation to other laws.  This Section follows the language in the prior Penal Code (1966), Provisions 150 and 152, Subsection (a), which address the wrongful accusation of unlawful sexual intercourse.  This Section also corresponds to the Islamic offense of qadhf, found in Rules Relating to the Conduct of Judicial Proceedings, Provision 257.  

 This Section departs from the greater scope of Provisions 150 through 166 of the prior Penal Code because of a new civil law proposing civil liability for defamation.  Allowing individuals to pursue compensation for defamation through civil law adequately addresses the social harms caused by the crime.  In addition, abolishing the crime of defamation will result in greater consistency within the Code in that all offenders will have to pay fines, whereas allowing for both criminal prosecution and civil claims will result in some offenders receiving punishment, some offenders receiving fines, and some receiving both.  Moreover, a civil remedy places fewer limits on free speech, which is also of societal interest.

 There is general support for this Section in Islamic law.  Defamation in the context of false accusations relating to fornication is severely punished in Islamic law.[75]  Moreover, Islamic law encompasses a wide range of actions and speech which constitute defamation.  Thus, the broad nature of this Section is encompassed within Islamic law.[76] 

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(21)

Comment:       

Generally.  An offense is committed under Subsection (a) when a person operates a business regulated by law without a license or permission from the relevant authorities.  It is also an offense to import regulated items without a license or permission from the relevant authorities.  Regulated items include firearms, catastrophic agents, controlled drugs, and alcohol.  This offense may also apply to other items which are outlawed or restricted by regulatory laws.  Subsection (b) broadens the offence further by penalizing anyone who engages in any other activity that requires a license (or permission) from an authority without obtaining that license. 

 Subsection (c) grades the offense at a Class 5 felony if someone imports or sells a firearm, catastrophic agent, or controlled drug.  The offense is a Class 1 misdemeanor if the person imports or sells alcohol without a license.  An unlicensed business or activities covered under Subsection (b) would be considered Class 2 misdemeanors.

 Relation to other laws.  This section parallels prior Penal Code (1966), Provision 88(21).  However, Section 617 expands the definition of the offense beyond operating as a tour guide without a license and prohibits the operation of any regulated business without permission form the relevant authorities.  There is a strong public policy argument in favor of expanding liability in this manner.  It is in society’s interests that businesses are operated in a safe and responsible manner so that public health is not put at risk.  Public safety concerns also merit that persons involved in importing items, particularly weapons and alcohol, do so in a safe and responsible manner.  The issuance of licenses insures that those that are involved in these activities abide by the appropriate regulations.  Therefore, criminalizing operating a business, importing without a license and other licensed activities deters individuals from undertaking such activities without abiding by appropriate regulations.

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(37)

Comment:

Generally.  This Section criminalizes entering into the exclusive economic zone of the Maldives without permission, and aggravates the offense (making it a Class 1 instead of a Class 2 Misdemeanor) if the person commits the offense with the purpose of fishing illegally.  The exclusive economic zone, as defined by the United Nations Convention on the Law of the Sea, extends 200 miles from the coast of the Maldives and is subject to the legal laws and policies of the Maldives for the purposes of economic exploitation and regulation.    

 Relation to other laws.  This Section parallels Provision 88(37) of the prior Penal Code (1966).  In addition, this Section finds support in International resolutions.[77]

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 29, 58, 60, 88(28), 88(38), and 88(39)

Comment:

Generally.  This Section defines what constitutes disorderly conduct.  Subsection (a) includes fighting and other violent behavior; unreasonable noise; obscene language and gestures; soliciting sexual contact; persistently following a person; or creating a hazardous or alarming condition for no legitimate purpose.  The goal of the statute is the prevention of harassment or annoyance of others.  Because this section is intended to protect the sensibilities of the general public and not those of a law enforcement officer, a private person must initiate the complaint. 

Subsection (b) grades the offense as a Class 3 misdemeanor.    

 Relation to other laws.  This Section encompasses several Provisions of the prior Penal Code (1966), namely Provisions 29 (acts against the State), 58 (where two or more persons engage in a fight so as to disturb the public peace), 60 (nuisance to neighbors or persons nearby in a public place), 88(28) (harassing women), 88(38) (disturbing neighbors), 88(39) (using vulgar language) and the Law on Walking on Streets.

In addition, Islamic law generally supports this Section.[78]  Islamic legal support for Subsection (a)(3) is discussed in the commentary to Section 623 and Subsection (a)(e) in the commentary for Section 620.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(20)

Comment:

Generally.  This Section criminalizes failing to fast during Ramadan and consuming pork or alcohol for those who are Maldivian citizens.  Those who give up fasting because of medical or health-related reasons are exempted from liability.  It should be noted that a non-Muslim who publicly consumes alcohol or pork away from areas licensed to sell the restricted materials may be found liable under Section 615 (Disorderly Conduct).  An additional punishment of 40 lashes is authorized for consuming alcohol.  Note that Section 411(f)(3) provides a precise definition of “lashes” in order to ensure that the enactment of this punishment falls within the bounds of common notions of decency.   

 Relation to other laws.  The portion of this Section which criminalizes failing to fast parallels Provision 88(20) of the prior Penal Code (1966).   

In addition, there is general support in Islamic law for this Section.  Muslim jurists agree that it is unlawful to omit to fast if one has (a) reached the age of majority and (b) is otherwise able to fast during the month of Ramadan.[79]  

There is also consensus on the fact that alcohol and pork are both prohibited for Muslims under Islamic law.  Ahmad b. Naqib al-Misri forbids consumption, in large or small quantities, of “any beverage that intoxicates when taken in large quantities.”[80]  Ibn Rushd also notes the unanimous opinion of Muslim scholars that “swine-flesh” is prohibited.[81]  It should be noted that this provision applies only to Maldivian citizens and not to all Muslims.    

Corresponding Provision(s): Law No. 4/75- Law on Items That Are Prohibited to be Brought into Maldives, Provision 4(i); Law Relating To The Protection Of Religious Unity Among Maldivian Citizens

Comment:

Generally.  The purpose of this Section is to criminalize public religious oratory and/or the distribution of materials that are specifically intended to criticize the tenets of Islam.  The culpability level is purposeful.  Taken together, this Section makes clear that only acts specifically designed to undermine the central place of Islam in Maldivian life, and thus likely to create significant public disturbance, are criminalized under this Section.  For example, the distribution of materials decrying Islam in offensive terms as evil in front of a mosque as worshippers exit Friday prayers would constitute an offense.  However, handing a friend a pamphlet about the health benefits of eating pork would not constitute an offense.  

 Subsection 617(a)(1) through 617(a)(5) specify the behavior that may trigger liability for this Section.  Subsection (a)(1) addresses religious oration that is performed in public or in a public medium.  Thus both a speech performed in a public square and a speech videotaped and distributed would trigger liability under this Subsection.  The public or in a public medium requirement are included because only public criticism of the fundamentals of Islam are harmful to society.  In addition, this offense is not intended to criminalize or discourage private conversations or discussions of Islam.  This offense is also not intended to criminalize the ordinary practice of other religions, whether by Maldivians or non-Maldivians, so long as their religious practice does not constitute an offense under Subsections (a).

            Subsection (a)(2) addresses the production, sale, or distribution of materials. 

 Subsection (a)(3) prohibits various activities promoting pornography in the Maldives.  Subsection (a)(4) prohibits the public production, possession, sale, distribution, dissemination and importation of idols of religious worship in the Maldives.  This does not include private items of religious or sacred value that individuals might possess. 

 Subsection (a)(5) prohibits attempting to disrupt the religious unity of Maldivian citizens.  Disruption to religious unity includes activities that seek to prevent Maldivian citizens from holding different and diverse views on religion.

 Subsection (a) also requires that the conduct in Subsections (a)(1) or (a)(2) criticize the tenets of Islam as set out in the Constitution (2008).[82]  This requirement limits liability to only that speech or those materials that insult the basic tenets of Islam: the oneness of God, acceptance of Muhammad as His prophet, prayer, fasting, pilgrimage, and charity.  In cases where the criticism of Islam is minimal, most likely the defendant will not have satisfied this element of the offense.

Exempted from liability in this Section are those who engage in speech or distribute materials on behalf of the government or a scholarly institution or do so for the purposes of scientific or religious study.  For example, someone speaking about the health benefits of drinking red wine would be exempt from liability under this Subsection.  Likewise, a professor writing on the history of Islam would also be exempted even if his research uncovered unflattering aspects of Islam’s history.

            Subsection 617(b) grades the offense as a Class 1 misdemeanor.

 Relation to other laws.  This Section parallels the Law Relating To The Protection Of Religious Unity Among Maldivian Citizens as well as Provision 4(i) of Law No. 4/75, which prohibits the production, use, sale, offer, giving, or spreading of anti-Islamic materials.  Materials included under this prohibition are diskettes, magazines, newspapers, tapes, drawings, and books.  Maldivian law also prohibits the distribution or sale of statues used for worship and prohibits the distribution or sale of pigs.

 Islamic law generally respects the right to criticize various aspects of Islam.  All the Islamic legal schools, aside from the Hanafis, declined to “hold even intentional jabs at the Prophet or his family to be criminally blasphemous.”[83]  As a result, pursuit of charges for criticizing Islam should bear in mind the rarity of such prosecution in Islamic history.     

Corresponding Provision(s):  Act No. 6/68j, Section 3

Comment:

 Generally.  The purpose of this statute is to require a person to take reasonable measures to prevent harm to others or to aid those who have suffered harm.  The reason for creating this offense is that, often times, the effort required to avoid harm is so minimal, and the harm brought to the person in need so great, that failure to take that effort is inconsistent with normal human concern for another person’s well being.  In most circumstances, alerting the authorities should satisfy ordinary requirements to act. 

Example 1:  Working late in the evening, X hears a cry, then sees Y slump over at his desk, apparently unconscious.  X is the only other person in the building.  X leaves the building without investigating Y’s condition further, calling for help or attempting to aid Y.  X should be subject to criminal responsibility for failing to aid Y.

Example 2:  C, operating a small vessel, sees a larger vessel capsize in heavy seas.  C fears to approach the capsized ship in the storm and cannot carry any passengers in his vessel.  C radios the national coast guard, informing them of the location and condition of the vessel.  C has, by radioing the coast guard, discharged his duty to aid and should not be subject to punishment under this section.

 The intent of the Section is not to impose heavy requirements on members of the general population.  For this reason, the statute permits a person to avoid rendering assistance where doing so would be dangerous or would interfere with his duties.  A superior duty should be any duty which a reasonable person might consider to supersede the duty to aid; consideration of the extent of the emergency and the likelihood that others might come to the rescue should be taken into consideration.  However, a court should not ignore the possibility that a person might be capable of fulfilling both his prior duties and his duty to aid.  Any risk of more than minimal danger will allow a person to avoid liability.  Exempting a person from civil liability will also encourage would-be rescuers to respond.  The phrase “not in a manner inconsistent with any professional duties of care or standards of competence” means that responders such as physicians and other health professionals, especially those who respond as part of their occupations, should not be exempted from ordinary standards of care. 

Example 3:  D watches as E rides his motorbike down the street far too fast.  E strikes an obstacle and flies over the handlebars of his motorbike, striking face first on the pavement.  F, a physician, comes around the corner.  Both D and F rush to E’s assistance.  E has facial fractures and has lost several teeth, with abrasions all over his body.  F encourages D to assist him in carrying E to the hospital, rather than waiting for help.  In the course of lifting E to his feet, D and F cause E’s head to shift, causing a loud crack.  E’s spinal cord is now severed and he will be paralyzed for the rest of his life.  D, as a layperson, is immune from civil damages brought by E, but E may seek damages from F, since F is a physician and should have known not to move E without stabilizing his head and spine.  Neither person would be subject to criminal charges, since both have attempted to aid E, even though they accidentally harmed him further.

 The person in need may be a person currently suffering harm or a person in danger of harm.  Regardless, if the person can perceive the harm and perceive that they can render aid or give a warning, a person should take that minimal effort.  Any person apparently in need of aid or a warning should be assisted.

 The purpose of the rebuttable presumption here is to emphasize that reporting any emergency to the appropriate authority should be the bare minimum of required behavior because alerting authorities is so simple and so likely to bring aid to the affected person.  Nevertheless, the judge should not ignore arguments as to whether informing emergency services would have been feasible or helpful to the person in need. 

Example 4:  A small village on a remote island is raided by a gang of criminals.  G is in a small house set far back from the village.  G has a radio with which he could call the coast guard in his boat which is on the shore.  However, G would have to travel through the village and past the gang of criminals to reach it.  G remains in his house until the criminals leave.  G should not be subject to the rebuttable presumption or to liability under this section, since his radio was not within his access at the time of the raid. 

Example 5:  On a remote island, H begins to choke on a piece of food.  J, his wife, observes him choking.  There is a telephone in the house. H asphyxiates and dies.  J does not call the authorities.  If the government brought charge against J, the government could invoke the rebuttable presumption, as she did not call the authorities.  However, J could successfully rebut the presumption, arguing that, because of the great distance to the island and the speed with which H died, J did not unreasonably fail to render aid because no effective assistance could have been made.  J should not be held liable.

 Relation to other laws.  This statute has largely adopted the standard of Act No. 6/68j, Section 3.  Islamic law generally supports this Section by considering the duty to aid a communal obligation (fard kifaya).[84]

Comment:

Generally.  This Section collects defined terms used in Chapter 610 and provides crossreferences to the Sections in which they are defined.

Relation to other laws.  For discussion of the relationship between the terms defined in Chapter 610 and Maldivian law, refer to the commentary for the Section in which each term is initially defined.  

 The purpose of this Chapter is to establish rules governing certain aspects of public indecency not captured by other Chapters, including prostitution, the distribution of obscene material, abuse of corpse, sale of human body parts, and cruelty to animals.  

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(25)

Comment:

Generally.  Section 620(1) prohibits providing sexual contact or sexual intercourse in exchange for anything of monetary value.  This Section, in combination with Section 621, below, criminalizes all acts of prostitution, whether they end in sexual intercourse or just sexual contact, consistent with the criminalization of sexual contact outside of marriage in Section 412.  This Section punishes the act, rather than the offer, of prostitution and thus, mere solicitation is not enough to warrant punishment.  The harm to society and the individual comes from the act itself.  The term “anything of value” expands the definition of prostitution beyond a simple definition of sex in exchange for money to ensure that all exchanges involving sexual contact and some form of payment incur liability.  Because this Section seeks to punish the underlying transaction for sexual contact, the form of payment should be irrelevant.  Therefore, under this Section, a prostitute would still be liable if he were found to have received food or any other tangible goods in exchange for sexual intercourse.  The Section specifically excludes spouses from liability, out of a desire to shield the marital relationship.  Thus, a wife who agrees to have sexual intercourse with her husband if he buys food for dinner would not be held liable under this Section.

 The required culpability is recklessness as read in through Section 24(8).  Thus, if a person ignores a substantial risk that he will receive payment for his sexual acts, he has committed the offense described in this Section.  For a more detailed description of the requirements for recklessness, see Section 24 (Culpability Requirements).  

 It is important to note that the language of the text refers to one exchange or encounter, not individual acts of sexual intercourse or sexual contact.  Within a single encounter, a person might commit many different acts of sexual intercourse and sexual contact.  Only where multiple, distinct encounters are solicited should multiple prostitution offenses be prosecuted.  This is similar to charging a man who steals twenty loaves of bread with one theft offense rather than twenty; to do otherwise would be unduly harsh.  Moreover, the prostitution offense does not overlap with the unlawful sexual intercourse offenses outlined in Chapter 410 (Offenses Against the Family).  Charges may be brought both for Prostitution and Unlawful Sexual Intercourse.  The reason for this is that the act is composed of two separate and distinct harms, that of engaging in an unlawful business, and that of promoting social disorder by engaging in sexual contact outside of a marital relationship.

 This Code does not have a separate offense for patronizing a prostitute because a person who offers to or does pay someone, who is not his spouse, for sexual intercourse or sexual contact is liable for solicitation under Section 81 of this Code.  

 Relation to other laws.  Section 620 is in line with Provision 88(26) of the prior Penal Code, which prohibits prostitution generally.  However, there are a few differences between this Section and existing law.  First, the Code divides the offense into two sections in order to introduce separate offense definitions for prostitutes and those who hire prostitutes.  This reflects the idea that both parties are guilty of engaging in criminal behavior.  Note that the business of prostitution would be prosecuted under Section 621 rather than under this Section.   

 Second, the Code narrowly defines prostitution as when a person, in exchange with anything of value, has “sexual intercourse” or “sexual contact” with someone other than their spouse while Maldivian law does not delineate what actions constitute prostitution.  However, this is in line with Islamic law, which traditionally has considered prostitution to be a type of adultery or fornication.[85]  Hence, the Code defines the act of prostitution in relation to unlawful sexual contact and intercourse.  This Section is also in accord with international resolutions on the exploitation and prostitution of women.[86]  

Corresponding Provision(s):  None

Comment:

Generally.  Section 621 creates criminal liability for those persons who, in exchange for anything of value, promote or support an act or acts of prostitution.  This Section refers to persons commonly known as pimps or madams, and proprietors of brothels.

 Section 621(a)(1) prohibits a person from compelling, or forcing, a person to engage in an act or acts of prostitution and ensures that a person who forces another to engage in an act or acts of prostitution will face criminal liability along with the prostitute.  For example, if a woman owes her landlord money, and he tells her that unless she engages in prostitution he will evict her, he is guilty of compelling her to engage in prostitution.  Guilt particularly applies if he pockets the proceeds from the prostitution.  The reason for this Section is that the person who arranges or facilitates prostitution commits a greater harm and manifests greater culpability than the prostitute herself.  A prostitute generally sells sexual favors out of need; further, the prostitute works at a risk to her own health and safety.  Promoters or facilitators of prostitution take none of the risks nor endure any of the trials of prostitutes and often garner greater benefit from the operation.  The promoter or facilitator usually runs a far lower risk of arrest than a prostitute, so a greater punishment is necessary to obtain effective deterrence. 

 This Section stipulates that those who promote or support an act or acts of prostitution have committed an offense in order to assign liability for both those who promote prostitution once in their lives and those who make a career out of it.  Section 1104 (Aggravations and Mitigations for Prior Criminal History) allows a court to distinguish between repeat offenders who make a habit of promoting prostitution and those who engage in the behavior either occasionally or only once.

 The kind of promotion or support of prostitution condemned by this Section should be understood, then, as any activity by a third party that facilitates the meeting of a prostitute and a customer.  A person may “compel” acts of prostitution by any threat of substantial harm of any kind, whether financial, physical, emotional, etc.  

 Note that Section 621(1)(a) may overlap substantially with Section 141 (Coercion).  Should the threats of compulsion amount to serious threats of physical harm or other consentcompromising threats, prosecution for Sexual Assault may be appropriate under Section 130.  Section 130 may also be applicable where the prostitutes are children.  Under Section 94 (Prosecution for Multiple Offenses), a person should be charged with one offense related to the compulsion of sexual intercourse. 

Section 621(a)(2) prohibits a person from arranging a customer or client in order for a person to commit prostitution.  This ensures that a person who essentially sets up a situation in which a person will commit an act of prostitution is criminally liable.  Arranging an act or acts of prostitution might consist of any scheduling of acts of prostitution, soliciting customers or potential prostitutes for acts, or arranging meetings between a known prostitute and a customer.  Voluntary compliance of the prostitutes is not a defense under this Section.  Because the statute is aimed in part at protecting prostitutes from exploitation, a prostitute should not be prosecuted under this Section for arranging her own meetings with clients. 

 Section 621(a)(3) prohibits a person from permitting use of a home or another place that he owns be used for prostitution.  This provision creates liability for running a brothel or permitting prostitution to be done in one’s own home.  The culpability required for guilt under this Subsection is recklessness as to whether the property is being used for prostitution, which means that the defendant must have ignored a known and substantial risk that his property was used for such a purpose.  For example, a hotel manager would be culpable under this Subsection if he tolerated a tenant or regular hotel guest who frequently brings in multiple strange male guests and supports herself without employment or other obvious means of support.  As explained above, a prostitute should not be prosecuted under this Section for hosting acts of prostitution within her home or other place, provided that she is the only prostitute working out of that home.

The following example illustrates liability under this Section:

Example 1:  X has a daughter, B.  C, a friend of X, approaches a man and offers him sex with B in exchange for MVR 5000.  The man agrees and C takes him to the house of his partner, D, who has agreed to allow them to use his home.  X brings B to D’s house against her will and demands that B have sex with the man or else be beaten.  She does, and the man pays X, C, and D the agreed fee.  X is liable under Subsection (a)(1) for compelling his daughter to engage in prostitution.  C is liable under Subsection (a)(2) for arranging a customer.  D is liable under Subsection (a)(3) for permitting the use of his home for prostitution.

The following example illustrates a person that would not be liable under this Section:

Example 2:  E approaches F and asks where he might procure a prostitute.  F responds and says that a brothel is located at a particular address.  E proceeds to that address and commits the offense of soliciting a prostitute.  F is not liable since he did not compel E to commit a prostitution offense, he did not arrange a prostitute for E (merely told him where E could arrange one himself), and he did not provide a place under his control for prostitution.

 Section 621(b)(1) provides for a Class 3 felony where the offender is supporting prostitution of a person less than 16 years old.  Otherwise, in accordance with Section 621(2)(b), the offense is a Class 4 felony.  Section 621 is graded higher than the provisions prohibiting prostitution under the theory that by forcing or encouraging acts of prostitution, and benefiting from those acts without incurring the same risk as the prostitute, the person is exhibiting a higher level of culpability than is the prostitute and therefore deserves a more serious penalty.

 Relation to other laws.  Though there is no directly corresponding provision in Maldivian law, this Section is a natural expansion of Provision 88(26) of the prior Penal Code (1966), which prohibits prostitution generally.  It is also consistent with prevailing Maldivian norms.  This Section is included to ensure that women are not subject to human trafficking and exploited by those seeking to exchange them for payment or housing.  

 This Section is also in line with Islamic law, which prohibits the sale of sexual favors because it promotes unlawful behavior.[87]  Many jurists consider prostitution to carry a penalty for prostitutes even when the sexual act is not committed because it is “disruptive to society” (fasad fi’l ard).[88]  

 Furthermore, this Section is designed to protect women and comply with international resolutions against the exploitation of women.[89]

Corresponding Provision(s):  Maldives Penal Code (1966), Provision 88(29)

Comment:

Generally.  This Section prohibits the production, distribution, or viewing of material with an obscene content or nature.  The culpability requirement as to the nature of the material is knowledge, thus a person that is unaware that the material is probably obscene has not committed an offense under this Section.  The prosecution must prove that the defendant knew of the obscene nature of the materials in question.  This means that the defendant must have had actual knowledge that the materials appeal to the prurient interests and depicts sexual acts in an offensive way.  For example, a person that provides a general service by reproducing videotapes, but himself never learns the contents of the tapes he copies, has not committed this offense unless he has some reason to be aware that the tapes are probably obscene.  To be liable, it is not necessary that the defendant know that such materials were illegal to produce or distribute, etc.  However, he must know the nature of the items.  A bookseller would be liable, then, if he displayed a book for sale knowing that its contents were obscene even if he did not know that it was illegal to sell such materials.  . 

  Under Section 622(a)(1), a person is prohibited from selling, delivering, or providing any obscene material.  A person can be found guilty under this Section even where the person does not profit financially from the transaction.  Note that the number of materials one sells, delivers, or provides is irrelevant for the purposes of liability.  Thus the shop owner who sells one obscene magazine and the individual who gives out obscene pamphlets from his home are both guilty of an offense under this Subsection.

 Under Section 622(a)(2), a person is prohibited from presenting an obscene performance.  This provision ensures that the responsible parties for any public performance of obscene material can be prosecuted and not just the performers themselves.   

 Section 622(a)(3) prohibits a person from publishing or making available anything obscene to the public.  This Section works in conjunction with 622(a)(1) to ensure that no form of distribution, whether for profit or not, is permitted.  Section 622(a)(4) prohibits a person from exhibiting his own body in an obscene manner or committing obscene acts in public.  This offense recognizes that such displays cause substantial public disturbances.  

 Section 622(a)(5) prohibits a person from advertising the availability of obscene material.  Section 622(a)(6) prohibits the creating, obtaining, or possessing of obscene materials for a purpose criminalized by this Section.  The requirements for possession liability are further outlined in Section 23 (Requirement of an Act; Possession Liability; Omission Liability).  To be liable under Subsections (a)(6) of this Section, the prosecution must not only prove that the person in question knew the materials were obscene, he must prove the person had a criminal purpose or had the intent to gain sexual pleasure. 

 Section 622(b) provides an exemption from liability for persons who have distributed the material to institutions or individuals who have a scientific justification for the material.  For example, a person who is researching the psychological effect of obscene material would not be subject to criminal liability for purchasing such material.  

 Section 622(c) provides that where a person is found to have items that can be used to make multiple copies of obscene materials, that person shall be presumed to have an intent to unlawfully distribute such materials.  This presumption satisfies the intent-to-distribute requirement in Section 622(a)(6) and in most cases will result in liability unless it is successfully rebutted.  For a more details description of how rebuttable presumptions operate, see Section 15 (Burdens of Proof; Rebuttable Presumptions).

 Section 622(d) provides a definition of “obscene.”  Obscene is defined in terms of the contemporary adult community standards of the Maldives.  This definition allows the definition of obscene material to change over time and ensures that where standards have changed, a person’s liability will change accordingly.  The definition also refers to an average person, thus it is not a defense to show that the defendant or some other particular individual or individuals do not find the material in question obscene.  Material that “appeals to the prurient interest” is that which only appeals to a person’s desire for sexual gratification.  If the interest the material provokes is artistic or political, for instance, the material does not appeal to prurient interests.  An inquiry into what interests the material appeals to is more factual than legal and requires careful attention to the effect of the materials on the ordinary viewer (or reader, listener, etc.) rather than just the facial appearance of the materials.  

 The materials must also “depict or describe sexual acts in a patently offensive way.”  This element limits the definition of obscenity strictly to sexual matters.  Moreover, the “patently offensive” requirement invokes the reference to “the average person,” meaning that the material must offend an ordinary adult Maldivian.  Again, the focus of the inquiry is not simply on the content of the material, but its effect on ordinary Maldivians.  The material must both offend and arouse.  Knowledge that the material has both effects is an element of the crime.

 Section 622(e) establishes the grading scheme for this Section.  Under this provision, a person who merely views obscene material is guilty of a lower-grade offense than is a person who distributes or produces obscene material.  Section 622(e)(3) provides for an offense one grade higher where the obscene material portrays a minor or a person of any age who cannot comprehend his acts.  Generally, the age of the person depicted is relatively apparent from the appearance of the materials.  Proving recklessness as to age should be relatively simple where the person depicted is in fact a minor, except where the nature of the material (e.g., a fuzzy or out of focus picture) makes such a determination impossible.  A person unable to comprehend the nature of their acts will be relatively hard to determine for viewers, but may be known or suspected by those involved in production.  An inability to comprehend may come from intoxication, mental illness, or mental retardation.  Finally, the harm sought to be prevented in Subsection (e)(3) is the actual exploitation of children and those incapable of comprehending their acts, as opposed to the major harm otherwise prevented by this Section: general offense against public morality.  As such, the grading increase in Subsection (e)(3) should not be available except where an actual child or mentally impaired individual is exploited in production. Depiction of a fictional minor or mentally impaired person (e.g., in obscene fictional literature or in obscene films of a mentally capable adult portraying a child or impaired individual) will not permit imposition of an increased sentence under this Subsection.   

 Relation to other laws.  Provision 88(29) of the prior Penal Code (1966) prohibits viewing pornography.  Section 622 codifies this prohibition but is more comprehensive in that it prohibits the distribution and production of obscene material.  These offenses were added in order to fully address all aspects of the problem of pornography.  In addition, this Section specifies different types of materials that are considered obscene, so that the law is not limited to magazines or other paper-based products.  This change was adopted to account for technological and cultural developments since the Maldivian provision was first adopted.  Finally, this Section creates a more severe penalty where a person is involved in the distribution or production of obscene material rather than simply viewing such material.  This increased penalty is based on the theory that such a person has caused more harm to society than one individual consumer.    Islamic law supports this Section because of the potential created for unlawful behavior and disruption of society, both of which have been discussed in sections 620 and 621 of this Chapter.  Islamic jurists follow the tradition of the Prophet condemning obscenity:  “A believer is not given to reviling, cursing, obscenity or vulgarity.”[90]

Corresponding Provision(s):  Rules Relating to the Conduct of Judicial Proceedings, Provision

284

Comment:

 Generally.  This Section creates criminal liability for those persons who treat a human corpse in a way that they know would outrage ordinary family sensibilities.  The offense covers sexual indecency, physical abuse, mutilation, gross neglect, and other outrageous treatment.  The exception for treatment authorized by law excludes from the offense all the lawful acts that may be done to a corpse, such as embalming, autopsy, scientific research, and medical examination.  “Ordinary family sensibilities” shall be determined by the judge according to community standards.  Note that the statute does not actually require that the deceased person have a family or for that the particular family members of the deceased be offended.  That kind of requirement would make the offense vary widely according to the particular sensibilities of the family of the deceased.  This would prevent the creation of a general standard of conduct that all members of the community could rely upon even if they do not know the family of the deceased.  The Section is simply a recognition that generally, a person ought to treat a corpse in a way that would not offend a reasonable Maldivian family member.  For more information on the culpability requirement of knowledge, see Section 24 (Culpability Requirements).  Section 623(b) grades the offense as a Class 2 misdemeanor.

 Relation to other laws.  Maldivian law is silent on this specific issue.  However, Provision 284 of the Rules Relating to the Conduct of Judicial Proceedings provides some support for including this Section in the Code.  Provision 284 holds that where a person kills a child upon giving birth to it out of wedlock and buries the child without following proper religious burial procedures for disposing of the body, the offender is sentenced to banishment for life.  Thus, Maldivian law tangentially addresses the notion that the abuse of a corpse is offensive to family sensibilities.  This Section expands this idea to all corpses, not just children, as well as to actions outside the realm of proper burial procedures.  The Code takes the view that  mutilation, as well as, physical and sexual abuse of the dead is as offensive and disrespectful as improper burial.

 In addition, there is a strong public policy argument holding those who treat a human corpse in an offensive way criminally liable.  The gross neglect of the dead should be deterred because it could potentially lead to the spread of disease.  

 Furthermore, express justification for this Section can be found in Islamic law, which prohibits the abuse of corpses including mutilation and physical abuse.[91] A number of Prophetic hadith specifically prohibit the mutilation of dead bodies.[92]

Note that this Code does not specifically criminalize infanticide because Section 110 (Murder), is thought to provide a sufficiently broad offense definition to address such actions.

Corresponding Provision(s): None

Comment:

Generally.  This Section covers persons who unlawfully buy or sell body parts or corpses.  This offense includes the buying and selling of body parts on the black market.  The offense excludes persons who pay or are reimbursed for the costs connected with lawful organ donation, as well as donation of blood, bodily fluids, and hair.  The offense also excludes payments made under health insurance plans and payments made to reimburse the costs connected with scientific research.  Finally, the offense excludes purchasing or selling drugs or other substances that have been made from human body parts and are used in medical or scientific research.  These exceptions only cover the specific transactions described.  Thus, intermediate transactions remain unlawful.  For example, if a human kidney is sold to a black market operator who then sells the kidney to a scientific laboratory for research, the black market operator would still be liable for the original transaction through which he acquired the kidney since that transaction is not covered by any of the exceptions under Section 624(b).

 Relation to other laws.  There are no provisions in Maldivian law governing the sale of body parts.  However, this Section is considered necessary in order to protect the public interest in organ donations and transplants for the purposes of medical operations and scientific research.  Allowing organs to be bought and sold on the black market would endanger the safety and security of such operations and research.  

 In addition, this offense attempts to prevent the exploitation of people so desperate to get funds that they are willing to sell their vital organs.  Many powerful public policy arguments favor such a rule.  First, vital organs are irreplaceable.  A person who sells an organ has no opportunity to get it back in the future, while people who part with any other valuable object carelessly or recklessly may work hard to replace the object at a later time if they come to regret their earlier decision.  Second, people who do not have sufficient information regarding their physiology may not have full awareness of the importance of apparently superfluous organs to their health.  Though one can survive the loss of a kidney, for instance, it can seriously damage long-term health in ways which may be unforeseeable to an ordinary person.  The argument for allowing the sale of human body parts only holds if the seller is fully aware of the consequences of his action.  Last, the funds obtained by organ sellers do not make up for the damage to health, the pain from the surgery, and inconvenience of the lengthy period of recovery required.  All these factors justify the assumption that sale of human body parts generally results in exploitation of the organ sellers, usually very poor people without access to accurate and complete health information. 

 This Section also creates certain exceptions to the offense, recognizing that the health care business is still a business and payment for certain expenses and products are appropriate. Even for the most selfless organ donor, the removal of an organ imposes certain direct and indirect costs.  Direct costs would cover such costs as that of travel to the hospital, the surgery, and stay at the hospital after the surgery.  Indirect costs would include the wages lost during the recovery period, the cost of childcare during that period, etc.  Thus, simply reimbursing the actual costs incurred by the donor does not create any risk of exploitation and so should not be punished.  If the donor is left in no better position than if he had not donated his kidney, no exploitation is possible.

The Islamic prohibition on selling body parts of corpses is included as a form of prohibited abuse mentioned in the discussion of Islamic law in Section 623.

Corresponding Provision(s):  None

Comment:

Generally.  This Section prohibits a person from subjecting an animal that he owns or any animal in his custody to cruel neglect or mistreatment.  The definition of cruel mistreatment would not encompass any appropriate action of resistance to an animal attack, infestation by vermin, or other offensive animals, or any action generally in keeping with the common practice of animal care (such as punishment in the course of training an animal).  Cruel mistreatment would be found when a person causes an animal pain either without any legitimate purpose (such as torturing a cat) or beyond the scope of the use of force appropriate to the purpose of its use (such as setting a cat on fire while attempting to train it).  The notion of “cruel mistreatment” should be determined in light of the general views of the ordinary Maldivian about what constitutes cruel mistreatment.  Similarly, the “neglect” offense should be determined by the common standard of what the ordinary Maldivian should expect of an ordinary animal owner. Taking custody of an animal makes one responsible for reasonable care of that animal. 

 The offense excludes persons who are acting according to accepted veterinary practice or who are doing scientific research, according to practices accepted by the scientific community, on such animals.  Lenity should be shown in the determination of the standards of the scientific community, as different schools of thought may consider different practices appropriate.  It is not necessary that all scientists or veterinarians should think a particular action appropriate; however, a mainstream group of scientists or veterinarians should think it appropriate.

 Relation to other laws.  There is no Maldivian law covering this offense.  However, there is a strong public policy argument in favor of protecting animals from cruelty and mistreatment.  Animals subject to such abuse can often become dangerously violent, and thus it is in the public interest to criminalize such behavior.  

 Furthermore, this Section is supported by Muslim jurists who agree that cruelty towards animals is forbidden in Islam.  This prohibition includes mutilation, “branding animals on the face”, and “killing them for other than food.”[93]  The prevention of mistreatment of animals is also within the jurisdiction of the muhtasib (market supervisor).[94]  Various Prophetic hadith prohibit torturing, mistreatment and cruel behavior towards animals.[95]

Chapter 710 creates offenses for the possessing, using, or dealing in weapons.  Section 710 creates offenses for using a dangerous weapon in the commission of a felony.  Under this Section, nearly any item that is potentially lethal can qualify as a dangerous weapon, reflecting an intention to penalize use of any such item in committing a crime.  Section 711 creates offenses for merely possessing especially dangerous weapons – specifically firearms and catastrophic agents.  This reflects an intention to prevent these weapons from even being available to the general Maldivian public.  Section 711 also presents various grades of offenses where firearms are involved based on the level of involvement with the weapons.

 Maldivian law is generally supportive of this Chapter.  There are several provisions that address the possession and use of weapons for particular offenses.  Islamic law also supports the responsible use and distribution of weapons, as well as penalties for improper use.

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 30, 31, 49, 51, 85, 140, 141 and 142

Comment:

 Generally.  Section 710(a) makes it a separate offense to use or display a “dangerous weapon” in the course of committing another offense.  Thus, in addition to being liable for some offense under the Code, a person is liable for a separate offense under Section 710(a) if he uses, threatens to use, or displays a dangerous weapon while committing the underlying offense.  

            Section 710(b) grades the offense higher if the person discharges the weapon.  

 Section 710(c) provides aggravating factors that will affect punishment.  If the offense involves a semiautomatic or automatic firearm, the offense is graded one grade higher than it otherwise would be with a manual weapon.

 Note that the offender’s authorized sentence is subject to Section 1006 (Sentencing for Multiple Offenses).  For example, if a person commits reckless homicide, he would be convicted of a Class 2 felony under Section 111 (Manslaughter).  If he discharged a firearm in the course of committing the reckless homicide, he would also be convicted of a Class 5 felony under Section 710.  Under Section 1006, the cumulative sentence for those offenses, assuming those are the only offenses for which he is convicted at that time, is the sentence for the Class 2 felony plus one-half of the maximum sentence for the Class 5 felony.  Section 92 sets forth the maximum authorized terms of imprisonment.  In this example, the maximum authorized sentence of imprisonment would be not more than 16 years – 15 years maximum for the Class 2 felony plus one-half of the maximum sentence of 2 years for the Class 5 felony.

 The limitations on conviction for multiple related offenses in Section 94 (Prosecution for Multiple Offenses) apply to offenses under Section 710 and related underlying offenses.  Therefore, if the underlying offense is defined to provide additional liability for using a dangerous weapon in the course of committing the underlying offense, an offender cannot also be held liable for an offense under Section 710.  For example, Section 120 (Assault) provides that if an assault is committed with a dangerous weapon, the offense is a Class 4 felony (Serious Assault) rather than a Class 3 misdemeanor (Simple Assault).  An offender who commits an assault with a dangerous weapon would be liable for serious assault under Section 120 rather than serious assault under Section 120 and an offense under Section 710.  However, if the underlying offense is not defined to prohibit the additional harm of using a dangerous weapon in the commission of the offense, Section 94 does not prevent an offender from being liable for the underlying offense and an offense under Section 710.  See Section 94 and accompanying commentary.

 Section 710(d)(3) notes that the term “dangerous weapon” is broadly defined in Section 120(d)(1).  Whether something is a dangerous weapon depends on the potential danger the item poses to a person; whether or not it has a lawful the purpose; and whether or not it is appropriately possessed for such a lawful purpose.  For example, if a thief brandishes a cast-iron skillet while robbing someone and threatens to beat the victim with the skillet, the skillet would be considered a dangerous weapon, since although it has a lawful purpose – to cook food – it is not being possessed for that purpose.  Section 710(d) also provides definitions for automatic firearm, automatic loading action, and semiautomatic firearm.

 Section 710(e) adds a sentencing factor that provides that the defendant’s baseline sentence is aggravated one level if he commits the offense after dusk and before dawn.    Relation to other laws.  This Section is supported by several provisions of Maldivian law that impose additional punishment for using weapons in the commission of several offenses.  Provisions 30 and 31 of the prior Penal Code (1966) provide penalties for making or conspiring to use weapons in attempts to overthrow the government or to commit crimes against the State.  Second, Provisions 49 and 51 of the prior Code (1966) outlaw possessing a weapon at an unlawful public assembly.  Note that the attempted overthrow of the government is addressed by Section 610, governing rioting and forceful overthrow of the government.  If a person is involved in an attempt to overthrow the government and employs a weapon to achieve his aim, this Section and Section 610 will be combined to determine his punishment.  

Third, Provision 85(d) provides an offense for interrupting a legal or judicial proceeding.  Provisions 140 and 141 of the prior Code (1966) provide additional penalties for persons possessing or utilizing weapons in the commission of theft or extortion.  This Section would treat the use of weapons in all of the preceding situations in the same way it would treat the use of weapons in an attempt to overthrow the government or the commission of any other offense.  The offense with regards to the weapons is the same no matter what the underlying crime might be.  The difference is in the offense charged for those underlying crimes, which are covered in Sections 532, 611 and 612, and Chapter 210.

Provision 142 of the prior Penal Code (1966) provides an aggravating factor when weapons are used in theft or extortion between 6 p.m. and 6 a.m.  This provision is reflected in the aggravating factor in Subsection 710(c)(2) for using weapons during an offense committed between dusk and dawn.

 Islamic law supports this Section by broadly prohibiting the threatening use of dangerous weapons.  Muslim jurists have looked unfavorably at even “pointing” or “gesturing” at others with dangerous weapons.[1]  Similar provisions are included in the penal codes of other Muslim countries.[2]

Corresponding Provision(s):  Maldives Penal Code (1966), Provisions 49, 51, 140 and 141; Law On Items That Are Prohibited To Be Brought In To Maldives Law No. 4/75 Provision 3

Comment:

 Generally.  Section 711 defines an offense for possessing, selling or trafficking in firearms or catastrophic agents.  This offense picks up where Section 710 leaves off, making it an offense to simply possess these types of weapons.  Section 711(a) creates an offense for trafficking, importing, manufacturing, possessing, selling, or transferring a firearm or catastrophic agent.

 Section 711(b) creates rebuttable presumptions of selling and trafficking of firearms based on the volume of weapons possessed.  Therefore, if someone is found possessing 27 firearms, he is charged with the offense of trafficking under 711(a)(2).  Once the prosecution establishes that the defendant possessed such a large number of weapons, the fact giving rise to the presumption, it is presumed that he satisfies the requirements of Subsection (a)(2).  However, he can rebut the charge by showing that he was merely possessing the weapons for his own use, thereby reducing the charge to a possession offense under 711(a)(4), which is a Class 1 misdemeanor under 711(c)(3).  Likewise, someone found in possession of seven firearms is presumed to possess the weapons with the intent to sell them, and is therefore charged with the requirements of the offense of selling firearms under 711(a)(3).  Again, he can rebut the charge by showing that he was merely possessing the weapons for his own use, thereby reducing the charge to a possession offense under 711(a)(4).  See Section 15 (Burdens of Proof; Rebuttable Presumptions) and accompanying commentary.

 Section 711(c) sets out the grading for this offense.  Note that if applicable, a defendant may be charged with an offense under this Section as well as with an offense as defined by Section 613 (Operating a Regulated Business or Importing Without License).  With regards to catastrophic agents, possession, selling, trafficking, importation and manufacturing are all Class 4 felonies under Subsection 711(c)(1), based on the inherent danger of catastrophic agents.  A catastrophic agent is defined in Section 121(c)(1).  For firearms, the penalty for the separate offenses of possessing, selling and trafficking of firearms increase the vary penalty based on the person’s actions and the number of weapons possessed in regards to the weapons.  If a the person is caught selling even one firearm, he is guilty of an offense under 711(a)(3), and is charged with a Class 5 felony as provided in 711(c)(2).  Similarly, if the person is caught importing even one weapon into the country, he is guilty of an offense under 711(a)(2) and is charged with a Class 4 felony as provided in 711(c)(1).  If a person possesses one firearm, he is guilty of an offense under 711(a)(4) and is charged with a Class 1 misdemeanor as provided in 711(c)(3).  However, as discussed above, mere possession of firearms can result in more stringent charges if the person possesses enough weapons to meet either of the two rebuttable presumption thresholds in Section 711(b).

 As in Section 710, Section 711(d) provides an aggravating factor of one grade level if any of the firearms involved are automatic or semiautomatic weapons.  If multiple weapons are involved, the fact that just one of the weapons is an automatic or semiautomatic weapon is enough to trigger the aggravating factor.

 Relation to other laws.  This Section parallels other Maldivian law, defining offenses whenever a person possesses firearms or catastrophic agents, whether or not in the commission of a crime.  The language of this section tracks that found in “Law On Items That Are Prohibited To Be Brought In To Maldives Law (No. 4/75),” which prohibits possessing, importing manufacturing, selling or transferring “weapons of war,” gunpowder and explosives.  Section 711 also prohibits the possession, sales, manufacturing and importation of weapons and increases grading for the more serious offenses.  This Section prohibits the same types of weapons as the above mentioned law as gunpowder and explosives fall under the definition of catastrophic agent in Subsection 121(c)(1), while “weapons of war” would seemingly be covered by both the prohibition on catastrophic agents (covering grenades and other explosives) and firearms (covering guns and including field artillery, rocket launchers, etc.)  

 This Section does not codify Provisions 140 and 141 of the prior Penal Code (1966), which define offenses for possessing weapons in the commission of theft and extortion.  This is because this Code addresses the crime of theft generally in Chapter 210 and extortion specifically in Section 213.  If a person is involved in theft and/or extortion and employs a weapon to achieve his aim, this Section and Chapter 210 will be combined to determine his punishment.  

Furthermore, this Section is also in accord with international conventions to which the Maldives is a signatory.  Specifically, the “Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction” says signatories must take “any necessary measures to prohibit and prevent the development, production, stockpiling, acquisition or retention of the agents, toxins, weapons, equipment and means of delivery specified in Chapter I of the Convention, within the territory of such State.”[3]

Comment:

 Generally.  This Section collects defined terms used in Chapter 710 and provides crossreferences to the Sections in which they are defined.

 Relation to other laws.  For discussion of the relationship between Chapter 710’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

 This Chapter expands on the Maldives’ law on terrorism and endeavors to punish groups that operate with a continuing criminal purpose or plan.  The rationale behind this Chapter is to punish and deter these sorts of organizations because they pose a serious threat to security, civil order, and the national economy.  

Corresponding Provision(s):  Law on the Prevention of Terrorism in the Maldives 1990

Comment:

Generally.  This Section makes it a crime to participate in any way in the operations of a criminal organization.  Even if a person’s participation involves activities on behalf of the organization that would be otherwise lawful, those activities are crimes under this Section.  The culpability required for liability under this Section is “recklessness.”  If the person unjustifiably disregards a known risk that the organization he is involved with may be a criminal organization he is liable under Section 720.

 Section 720(a) defines the offense of participating in a criminal organization.  Subsection (a)(1) punishes participation in the operation of a criminal organization.  “Operation” of a criminal organization refers to any activity that is necessary for the planning or commission of the organization’s criminal acts.  Participation in such an operation can include involvement in the criminal activity itself, or merely providing support services or running legitimate businesses on behalf of the organization.  The “material” requirement under Section 720(a)(3) is an important limitation, as not everyone who has contact with a criminal organization should be liable.  For example, the person who sells napkins to a gangster is not liable, but a criminal syndicate’s transportation coordinator probably would be.

 Section 720(a)(2) criminalizes the recruitment of new members to a criminal organization This Section is designed to ensure that individuals do not provide support to entities or persons involved in criminal acts by recruiting participants.  The culpability required by this Section is recklessness.  Thus, a person is not liable for the offense unless he unjustifiably disregards a known risk that the recipient organization is a criminal organization.  In addition, a person who tries to persuade or encourage others to become involved in the operations of a criminal organization, and succeeds in persuading the others to join commits an offense under this Subsection.  Note, however, that if the person fails to persuade others to join, the person may still be guilty of attempting the offense.  For further discussion of attempt liability, see Section 80 and its corresponding commentary.

 Section 720(a)(3) criminalizes the provision of financial or material support to a criminal organization.  This Subsection criminalizes contributions to criminal organizations even if the donor is not involved in the actual planning or commission of criminal acts.  For instance, a contribution of money or weapons to a terrorist organization would be a crime under this Subsection.

 Section 720(a)(4) makes it an offense to use or invest the proceeds of a criminal organization.  Thus, if a member recklessly took money that was derived from illegal drug operations and invested it in the stock market or used it to open a legitimate business, he could be charged under this Subsection.  This provision aims to prevent certain members of criminal organizations from escaping liability for the group’s criminal activities by participating only in lawful activities.  It also creates an obstacle to the operation of criminal organizations by denying such groups access to legitimate commerce and financial services.

 Section 720(a)(5) is directed at the people with primary authority for organizing and running criminal organizations.  The primary purpose of this Subsection is to allow the bosses of criminal organizations to be charged with a more serious felony than the other participants.  A similar relationship exists between organizers/leaders and minor participants in Section 30, governing liability for the actions of others.

 Section 720(b)(a) provides a definition of “criminal organization.”  This definition includes terrorist groups as well as drug, gambling, and prostitution rings.  In Subsection 720(b)(1)(A)(aa), the phrase “acts involving violence, catastrophe, or a threat of either” includes homicide, property destruction, kidnapping, hijacking, and endangerment.  It is also meant to include all of the criminal acts described in the international and regional terrorism conventions to which the Maldives is party.[4]  Likewise, the phrase “acts constituting drug trafficking or sale” in Subsection 720(b)(1)(A)(bb) is meant to address criminal organizations that deal in illegal drugs.  The phrase “as part of an ongoing plan or purpose”, present in both Subsections, is meant to exclude acts of violence committed by persons who have no internal organization or intent to operate as a criminal organization.  

 Liability under this Section does not preclude prosecution for conspiracy under Section 82.  It is not necessary, under this definition that the violent or catastrophic acts be committed or planned in the Maldives.  A terrorist group that committed more than two attacks in another country would qualify as a criminal organization.  As such, any participation in or contribution to that organization by a Maldivian resident would still be a crime under this Section.  

 Section 720(b)(1)(A)(cc) includes in the definition groups that publicly announce or acknowledge a plan to commit violent or catastrophic acts even if they have not actually committed any as of the time of arrest.  An announcement or acknowledgement is “public” if it is reasonably likely to reach the ordinary Maldivian (through any medium).

 Section 720(b)(1)(B) includes groups designated as criminal or terrorist organizations by the United Nations.

 Section 720(b)(2) provides a definition of “material support.”  This definition includes providing financial support as well as support in the form of lodging, training, and equipment such as explosives, weapons, and the like.

 Section 720(c) grades the offenses in this section.  Under Subsection (c)(3) the baseline grade for a violation of this Section is a Class 4 felony.  Subsection (c)(1)(A) provides that those who knowingly direct or control criminal organizations will be guilty of a Class 2 felony; Subsection (c)(1)(B) grades the offenses defined in Subsections (a)(1) through (a)(4) as Class 3 felonies where the defendant acts knowingly.  Subsection (c)(2) lowers the grade of the offense defined in Subsection (a)(5) to a Class 3 felony if the defendant is only reckless as to the criminal nature of the organization.

 Relation to other laws.  This Section replaces the Law on the Prevention of Terrorism in the Maldives 1990 (LPTM).  The definition of criminal organization is meant to encompass all groups that commit the crimes specified in Provision 2 of the LPTM.[5]  Provision 3 of the LPTM, prohibiting the “provision of funds or materials or any other form of assistance towards the commission or planning of any [terrorist] acts…” is replaced by Subsections (a)(1)-(3), which cover substantially the same types of conduct.  Additionally, the Section reaches more broadly than the LPTM in an attempt to cut off support and inhibit the operations of criminal enterprises.  This broader reach is necessary to fully address the problem of terrorist activity, and to give effect to Maldivian norms which condemn organized crime.

 This Section is also in line with Muslim jurists’ condemnation of organized criminal activity as a form of “waging war against society” (hirabah).[6]  Some Muslim jurists have considered this to be any activity by an “individual or group” who take the “law into their own hands” or wishes to disrupt the “communal order.”290  

Moreover, Section 720 also complies with international resolutions requiring state action to prevent any form of support, active or passive, to entities or persons involved in terrorist acts.[7]

Corresponding Provision(s):  None

Comment:

Generally.  This Section makes it a crime to use the financial system to attempt to commit further criminal activities.  As with Section 720, Section 721 is intended to further hamper and prohibit the operation of organized criminal groups.  It also protects the integrity of legitimate financial transactions and the banking system generally in the Maldives.

 Section 721(a) makes it an offense to conduct certain financial transactions with the knowledge that the funds in question were obtained through unlawful activity.  To be a crime under this Section, the funds must be of unlawful origin.  Transferring money that was legitimately obtained is not a crime under this Section, even if the purpose of the transfer is unlawful.  For discussion of willful blindness, see Subsection 24(d)(2) governing situations where a person may be held to act knowingly with respect to a circumstance element if the person is aware that it is probable that the circumstance exists.

 Under Subsection (a)(2)(A) it is an offense to conduct a financial transaction in order to further the commission of an unlawful activity.  For instance, if someone were to wire money to another person so that the second person could purchase illegal drugs or weapons, that would be an offense under this Subsection.  In addition, accomplice liability, governed by Section 30, will be available in any case arising under Subsection (j)(2) where the unlawful activity constitutes a separate offense.

 Subsection (a)(2)(B) prohibits transactions that “conceal the nature, location, source, ownership, or control of the proceeds of unlawful activity.” This is the classic crime of moneylaundering.  For instance, transferring profits from the sale of illegal drugs into an off-shore unnamed account would be a crime under this Section.  “Concealment” requires that the defendant affirmatively act in some way that makes information about the proceeds more difficult to find. 

There is no “concealment” by omission. 

 Subsection (a)(2)(C) prohibits transactions in illegally obtained funds that are designed to avoid statutory reporting requirements.  Maldivian banking and tax law would provide the underlying statutory reporting requirements.

 Subsection (b) provides definitions of “financial transaction” and “monetary instrument” and do not require further explanation.

 Under Subsection (c), the commission of any of the acts prohibited by this Section is a Class 4 felony.

 Relation to other laws.  Maldivian law contains no prohibitions on money-laundering.  This Section is included to address the growing complexity of the global financial system and the serious threat to the integrity of that system posed by those who would use it to further illegal aims.

 Islamic law supports this Section generally.  The Qur’an states that people should not “wrongfully consume each other’s wealth.”[8]  Subsection (a)(1) is supported by Muslim jurists who prohibit dealing with wealth that has been “unlawfully obtained.”[9]  Furthermore, Subsection (a)(2) is supported by the Islamic legal principle that prohibits partaking in activities that further elements that are “instrumental causes” of unlawful behavior.[10]

Comment:

Generally.  This Section collects defined terms used in Chapter 730 and provides crossreferences to the Sections in which they are defined.

 Relation to other laws.  For discussion of the relationship between Chapter 730’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.

The following three Chapters outline the general principles of application for the sentencing guidelines.  There is a grade for every offense defined in this Code.  For every grade, there is a maximum penalty.  The sentencing guidelines are designed to guide a sentencing court in imposing proper punishment on each offender and each offense within the statutorily authorized range.

 The purposes of the sentencing guidelines are the same as the Code’s general purposes:  to punish an individual proportionate to his desert, to state clearly society’s intolerance for the conduct, to prevent further bad acts by that person, and to deter others from committing the same offense. 

 While an explicit sentencing guidelines regime is a novel document for the Maldives, the guidelines themselves codify existing principles in use in Maldivian law.  By codifying the sentencing factors already used in determining the sentence for any given offender into one regime, and giving particular weight to individual factors, the sentencing guidelines should make sentencing more systematic, more rational, and more effective.  The desire to create such a uniform standard is already expressed in Maldivian law.[11]  Because the sentencing guidelines codify general factors used to determine sentences throughout Maldivian law, this commentary does not compare the guidelines to other law.  Instead, this commentary discusses the workings as well as the rationale behind each particular sentencing factor.   

Corresponding Provision(s):  None

Comment: 

Generally.  This Section has two purposes.  First, the Section requires that a sentencing court determine what the sentence would be under the guidelines, even if the court will depart from that sentence.  Placing this Section as the first in this Chapter is clear indication that the sentencing guidelines guide all sentencing decisions.  While the actual sentence suggested by the guidelines is not mandatory, sentencing courts are not free to ignore the guidelines.  In each case, the public record must include the guideline sentence as well as an explanation of the sentencing court’s application of the guidelines.

The second purpose for this Section is to encourage systematic review of sentencing decisions by the Supreme Court.  It will take time for judges to become accustomed to implementing a novel Code and sentencing system, so oversight by the Supreme Court should be particularly vigorous during the period immediately after implementation.  By reviewing sentencing decisions, the Supreme Court can ensure that judges properly implement the sentencing guidelines. 

Corresponding Provision(s):  None

Comment:  

Generally.  The purpose of this Section is to instruct a judge in applying the sentencing guidelines.  The nature of the charge will determine in which column the judge should look to determine the sentence.  If the offense of which a person has been convicted is a Class 3 Felony, the judge should consider the column labeled “Class 3 Felony.”  If the offense of which a person has been convicted is a Class 2 Misdemeanor, the judge should consider the column labeled “Class 2 Misdemeanor.”  The sentencing factors will determine whether the defendant should get a sentence from a box high or low within that column, but the sentence should always come from that column.

The sentencing factors can be found throughout the Code.  Many of them can be found in Chapter 1100 (General Adjustments to Baseline Sentence).  Others can be found in the Special Part, attached to special offense definitions.  A few can be found in the General Part. 

Taking all of the relevant sentencing factors into account, a judge should determine whether the government has sufficiently proved the aggravating factors and whether the defense has sufficiently proved the mitigating factors.  The baseline sentence for each grade, listed in the following section, should be imposed if no aggravating or mitigating factors are found; the baseline sentence functions as a default sentence.  Each of the mitigating factors will reduce the level of a sentence given to an offender compared to the baseline sentence.  Each of the aggravating factors will increase the level of a sentence given to an offender compared to the baseline sentence.  The number of levels of mitigation proved by the defense should be subtracted from the number of levels of aggravation proved by the government. 

Consider an example.  Let us say an offender is convicted of a Class 4 felony.  Let us also assume that the government proves three aggravating factors, one increasing his sentence by two levels, the other two increasing his sentence by one level each.  Finally, let us also assume that the offender proves one mitigating factor, reducing his sentence two levels.  The calculation would look like this:

Aggravation #1: 

+2 levels

Aggravation #2: 

+1 level

Aggravation #3: 

+1 level

Mitigation #1: 

-2 levels

Net Result       

+2

 So, the judge would look in the column for a Class 4 felony, and then look for the +2 box within that column.  The sentencing guidelines would suggest a sentence of 3 years for that offender.

Corresponding Provisions:  None

Comment: 

Generally.  The table expresses the relative severity that certain punishments ought to take, according to the grading of the offense and the extent of mitigation or aggravation of the sentence under the sentencing guidelines.  The commentary accompanying Section 1001 explains the process used in determining the appropriate sentence. 

As a note, the table expresses the appropriate punishments as a measure of time incarcerated, not because incarceration is the preferred punishment, but because incarceration is one of the most common forms of punishment.  A sentencing court should not presume that because the table is expressed in periods of incarceration that a sentence of incarceration is the only appropriate sentence in every case. 

Corresponding Provision(s):  None

Comment: 

Generally.  This Section builds on the previous provision, explaining how a sentencing court should go about departing from the sentencing guidelines.  Having already established that the sentencing court must determine the appropriate sentence under the guideline, this Section states that the sentencing court may then depart upwards or downwards according to its own discretion.  If the sentencing court does decide to impose a sentence departing from that sentence by more than two levels, then the sentencing court must explain the reasons for that departure in a written opinion.  

The reasons for requiring a written opinion for departures from the sentence determined under the guidelines are numerous.  If a sentencing opinion states how the sentencing court used the sentencing guidelines and how the sentencing court departed from the guidelines, the offender and society as a whole can better understand what choices were made and why.  These careful explanations will reduce distrust of the criminal process, make the process more transparent, and eliminate the appearance of a sentencing process that is highly discretionary and arbitrary.  Also, when a sentencing court writes out the logic of his sentencing decisions, other judges can observe and learn from that judge’s opinions.  A written opinion will allow the Supreme Court to understand the reasons for a judge’s decision and may persuade the Supreme Court not to overturn a sentence.  Last, if judges are systematically departing for one reason or another, the legislature may choose to take action to incorporate that factor in the sentencing guidelines. 

Corresponding Provision(s):  None

Comment: 

Generally.  This Section states that incarceration is only one means of imposing punishment under the guidelines.  Other means of punishment may be used as an alternative to incarceration entirely, or as a substitute for some period of incarceration.  In a case of a drug addict convicted of petty theft, an appropriate sentence might be a period of drug treatment rather than any incarceration at all.  On the other hand, in a case where a person is convicted of importing firearms into the country, and the guidelines recommend a sentence of three years and six months, it may be just as effective to substitute a fine for the last six months of the term.  The sentencing court might then sentence the offender to three years of incarceration and a fine comparable in severity to six months imprisonment. 

Corresponding Provision(s):  None

Comment:

 Generally.  This table establishes the appropriate measures of conversion between periods of incarceration and other non-incarceration punishments.  The rates of conversion are based upon studies of the intuitions of informed laypeople about the relative punitive value of various punishments.  The purpose of the table is to enable judges to substitute alternative punishments for incarceration punishments in a systematic fashion, rather than by using guesswork. 

Corresponding Provision(s):  None

Comment:

 Generally.  The purpose of this Section is to strike a proper balance between providing sufficient punishment for multiple offenses to keep the dignity of the criminal law in tact while not creating such extreme sentences that the costs of incarceration bankrupt the State. 

In criminal law systems that allow an offender to serve concurrent sentences, the concurrent sentence in essence allows a “free” offense, or an offense without additional punishment.  This practice creates a serious problem.  Such a system fails to deter a person who has committed one offense from committing a further offense.  Such a system also fails to treat a second (or third) offense as a serious one, by failing to punish the offense separately.

On the other hand, if every person who had committed multiple offenses were sentenced for each offense as if he had committed no other, most nations would find the criminal justice system swamped with inmates.  The potential for amassing charge on charge and arriving at an unwieldy sentence under such a system is very high. 

The system outlined in this Section provides a further punishment for each additional offense, but further punishment of increasingly less severity.  Under this Section, the sentencing court should first calculate the sentence appropriate to each offense under the guidelines as if that offense were the only one committed by the offender.  Of the sentences obtained, the judge should add together the full duration of the longest or most severe sentence, half the next most severe sentence, one quarter of the third most severe sentence, etc.  For each additional offense, a lesser and lesser fraction of the sentence for that offense should be added to the total.  The net effect of this rule is that an offender should never serve a sentence twice as long or longer than the longest sentence for the most severe punishment mandated for an individual offense committed by the offender. 

As stated above, the sentencing court should use the longest sentence an offender would receive as the first offense, the next most serious as the second, etc.  If two offenses are of the same grade and the same degree of aggravation, the court may consider one or the other as the most serious offense, even though the offenses are of equal gravity.  However, the court should still apply the sentencing factors under Section 1104 (Aggravations and Mitigations for Prior Criminal History) to whichever offense was selected as the “first”, even if, in doing so, the “first” offense is made less serious than the “second” offense.

Corresponding Provision(s):  None

Comment:

 Generally.  This section merely restates the powers of a sentencing court to make appropriate rules for offenders, usually to prevent further wrongdoing.  Requiring a sex offender to avoid the groups of people he has previously targeted, such as children, or to avoid particular places, such as public parks or schoolyards, that were the scene for earlier offenses would be a typical example of such a power.  Judges should use such power with care and consideration for its effects on the offender.

Corresponding Provision(s):  None

Comment:

 Generally.  Subsection (a) provides that the sentencing judge shall apply both offensespecific sentencing factors and all relevant general sentencing factors from this Chapter to the baseline sentence.

 Subsection (b) clarifies the way in which the sentencing judge shall apply the two sets of factors listed in Subsection (a) to one offense.  The sentencing judge shall first look to the offense charged and then to this Chapter in determining a sentence.  The sentencing factors in offense definitions take priority, in other words, this Chapter may be viewed as layered on top of existing specific sentencing factors.  In order to avoid double-counting sentencing factors, if a factor is relevant and is present in both the specific offense and this Chapter, the factor shall only be applied to the extent it is not accounted for in the specific offense.  

For example, under Section 130 (Sexual Assault), having sexual intercourse with a minor at least 4 years younger than him is a Class 2 felony.  Under Section 1102(a)(2)(A), the baseline sentence may be increased if the victim is particularly vulnerable because he is a child.  If the victim was 4 years younger, and had no other particular vulnerability, then the sentencing judge should not aggravate the sentence based on the victim’s age.  However, if the victim was significantly younger, then the sentence would reasonably be aggravated because of the victim’s special vulnerability in light of the specific offense.

Corresponding Provision(s):  None

Comment:

 Generally.  This Section directs the sentencing judge to aggravate the baseline sentence if the offender’s culpability is higher than the minimum for the offense.  This provision is meant to reflect an increase in a very significant (possibly the most significant) indicator of an offender’s blameworthiness, his mental state.  Thus this guideline does not limit the sentencing judge to an increase of one level for this factor, but rather, one level for each higher level of culpability over the offense’s baseline.

 Each offense has a required level of culpability as to the harm caused, according to the culpability levels defined in Section 24 (Culpability Requirements).  The most common required culpability level is one of recklessness as to the harm caused.  Where no specific culpability level is described in the offense definition, the Code in Section 24(h) states that one should assume that recklessness is the required level of culpability.

            This section indicates that, where a person acts with a more culpable state of mind than that required by the offense, the sentencing court should increase the sentence for that offender.  For instance, an offender commits the offense of unlawful restraint, which requires that a person act recklessly, with the purpose of restraining that person.  By committing that offense with a purposeful level of culpability, the offender exceeds the basic requirement of recklessness by two levels.  For that reason, the offender’s sentence should increase by two levels. 

Corresponding Provision(s):  None

Comment:

Generally.  The most important sentencing consideration is properly assessing the harm caused by an offender.  This Section attempts to address several of the ways in which a harm can be made more serious than the minimum harm required by the statute.

Under Subsection (a)(1), the baseline sentence may be aggravated where the act has harmed the public interest.  Since harms to the public interest are usually far-ranging in effect, attacks on the public interest are particularly dangerous.  Generally speaking, since many people have a stronger interest in protecting their own interests as compared to the public interest, punishment of those who abuse the public interest must be especially strict in order to deter offenders. 

Subsection (a)(1)(A), recognizes that the effect of disruption of a public facility, public service, or public institution can be particularly widespread.  A person who interferes with the provision of electrical service or the function of an airport, to name two common examples, can affect people throughout the country or around the world.  The kind of offenses that might commonly affect the public interest might be theft or property damage at a public facility or to the property of a public utility service, threats made against a public facility that close or inhibit the function of the facility, etc. 

Under Subsection (a)(1)(B), there is an aggravation for offenses which damage the public trust in government or other public entity.  Here, however, the harm is ephemeral, as it affects the attitudes of the public toward the ultimate security and transparency of their society.  Fraud in banking or other financial services can have a similar effect on public trust as corruption in government. 

Harm against government interests is particularly detrimental, and accounted for under Subsection (a)(1)(C).  Government property can be an easy target for theft, and taxpayers ultimately pay for the theft.  When a person assaults a government agent, such as a police officer or judge, the assault makes it harder to recruit future public servants.  Harm against the Government, the representative of the people, merits special punishment.

Subsection (a)(2) provides an aggravation where a victim is particularly vulnerable to the kind of harm perpetrated against him.  Committing offenses against vulnerable victims shows a particular depravity, a willingness to prey on those who have a diminished ability to protect or defend themselves, both during and after a crime.  The elderly, the young, the ill, and other vulnerable victims have the least capacity to deal with the harms caused, whether fiscal or emotional. 

While Subsection (a)(2)(A) lists several groups of people as vulnerable victims, the list neither contains all of those who might be a vulnerable victim to a particular harm nor automatically qualifies all those listed for vulnerable victim status.  For instance, while a wealthy elderly woman might be particularly vulnerable to an assault because of her frail state, she would not be particularly financially vulnerable to embezzlement, since her wealth may leave her quite capable of absorbing a modest financial loss.  On the other hand, a young, healthy adult man may not be a vulnerable victim generally, but, if a natural disaster occurs and leaves him homeless, he may be particularly vulnerable to any number of property offenses.  Each offense will have its own vulnerable victims, and the aggravation should be adjudged on a case-to-case basis.

Subsection (a)(3) provides for an aggravation where the offender harms a place, artifact, property or other interest of historical, religious, environmental, or cultural significance.  This is similar to the aggravation in Subsection (a)(1) in that such a harm is considered worse because it affects an interest belonging to the public and society at large.  Such an interest is likely to be unique and irreplaceable, and therefore deterring such conduct justifies an increased penalty.

Under Subsection (a)(4), any other harm that exceeds the minimum required by the statute should be considered under this section.  The relevant harm will vary from offense to offense. In a theft offense, the harm will generally be financial.  If an offender steals goods worth 4,999 Rufiyaa, his offense will be graded as a Class 1 misdemeanor.  However, had he stolen one Rufiyaa more, his offense would have been a Class 5 felony.  Simply because of the value of the items stolen, the offender’s sentence should be increased dramatically.  For other offenses, the harm will be of a different kind.  For assault offenses, the harm is bodily harm; where a person causes an injury to another that does not qualify as “serious bodily injury” yet presents a dire harm to the victim, the offender should receive an increased sentence.  Where an offender has committed perjury, the importance of the lie told should play a role in determining the sentence. The relevant harm will vary from offense to offense, yet the sentencing judge should always accurately capture the importance of that harm at sentencing.

Corresponding Provision(s):  None

Comment:

Generally.  Under this Section, if an offender commits an offense in a manner displaying great cruelty or disregard for human dignity, then the offender is particularly culpable and deserves greater punishment.  As with all considerations of harm, one must always remember that the harm considered is only that which exceeds the minimum described by the statute.  Sexual assault, among many other offenses, is an offense which necessarily entails substantial disregard for human dignity in its commission.  In construing the meaning of this provision, then, one must look for excessive cruelty or gratuitous conduct beyond a typical case.  A rapist who goes to excessive lengths to humiliate his victim or to exacerbate suffering should obtain this aggravation.

Corresponding Provision(s):  Book 6 of the Rules Relating to the Conduct of Judicial Proceedings, Section 289.

Comment:

 Generally.  This Section directs the sentencing judge to aggravate or mitigate the baseline sentence based on the offender’s prior criminal history or lack thereof.  Prior history is taken as an indicator of the offender’s dangerousness, propensity to commit crimes, and obdurate response despite prior sanctions.  The offender who persists in a criminal pattern despite prior sanctions is particularly in need of stronger punishment in order to break him of the habit.

 Subsection (a) follows the general rule that the worse the prior record, the greater the aggravation.  Violent felonies are weighed particularly heavily because they most closely correlate with the offender’s dangerousness and the amount of menace he poses to society.  Note that Subsection (a) stipulates that its aggravation is to be applied only to the most serious offense at hand.

 Subsection (b) allows for an aggravation when an offender has committed a substantially similar offense within the past two years.  The aggravation is available regardless of whether the aggravation in Subsection (a) has been imposed.  This Subsection is based on the principle that when an offender is particularly inclined to commit a certain type of offense, this inclination requires stronger sentencing to counteract it.  An offender who commits a similar offense again manifests a culpable disregard for the rule of law.  Having already committed a similar offense, the offender has failed to learn his lesson.  That kind of response suggests contempt for the criminal justice process.  Subsection (b) stipulates that its aggravation should be applied to any and all offenses that are substantially similar to an offense previously committed by the offender.  Subsection (c) directs that in calculating time intervals, the time spent under punishment is not to be included.  This is because during this time, the offender is less likely to have the means and opportunity for committing a crime.  A prediction or assessment of his behavior as a free man cannot fairly be made on the basis of his behavior as a prisoner or someone otherwise subject to punishment.

 Subsection (d) offers a mitigation for the least dangerous offender, the person whose crime is an aberration from the rest of his life.  This Subsection recognizes that while prior criminal history may be an indicator of dangerousness, lack of prior history and the aberrant nature of an offender’s crime is an indicator of lack of dangerousness.  An ordinarily law-abiding person can get “carried away” in a particular situation and commit acts which he would not otherwise commit.  Subsection (d) also stipulates that the mitigation should apply only to the most serious offense.

Under Subsection (e), the sentencing judge shall only take into account felonies committed as a minor, but not misdemeanors.  This Subsection is based on the principle that it is overly harsh to account for a minor’s misdemeanors but that felonies are always significant and an indicator of the offender’s dangerousness.

 While the rationale behind this Section is a strong one, specific factual situations may give a sentencing judge a legitimate reason to depart from this guideline.  For example, suppose a year before the current offense of theft, the offender committed a prior theft.  However, in the first case, he stole a television just because he wanted one, and in the present case, he stole food for his hungry child.  Although the offense is similar, the judge can reasonably take account of the different motivations in deciding whether or not to apply Subsection (b).  

 Relation to other laws.  Maldivian law precludes consideration of any juvenile record.[12]  However, commission of felonies as a juvenile may be reasonable grounds for aggravating the sentence of an offender. 

Corresponding Provision(s):  Book 6 of the Rules Relating to the Conduct of Judicial Proceedings, Section 296.

Comment:

 Generally.  Section 1106 takes into account the offender’s willingness to attempt to put right the harm he has caused.  Refusal to agree to compensate for harm is an indicator of an offender’s continued antisocial attitude and lack of compassion.  Furthermore, it leaves the victim at a loss for a means by which to recover from the harm.  Last, the aggravation incorporates the traditional Islamic legal ruling whereby the offender was required to make reparation to the victim.  By essentially enhancing the punishment for those who refuse to make compensation, the Code affirms the importance of this traditional rule.  Where an offender refuses to compensate a victim or agree to compensate him over time, under Subsection (a), his baseline sentence shall be aggravated.

 Subsection (a) also recognizes the possibility of establishing a standing agreement to compensate a victim.  While many offenders will not have the capacity for wholly reimbursing a victim immediately, an offender may accomplish the reimbursement over time, in periodic installments.

 Subsection (b) recognizes that actually redressing harm may be impossible for financial or other reasons, and requires only a good-faith reasonable effort by the offender.  The fact that a harm cannot be completely compensated for does not alleviate the offender’s duty to do as much as he can in order to partially compensate the victim.

Under Subsection (c), the court may delegate responsibility for deciding on the terms of compensation to the offender and the victim.  This allows the victim to be a part of the judicial process and to inform the offender of what exactly the victim has been deprived of.  However, the victim’s demands may not exceed the harm actually suffered.  If the delegation of responsibility is unsuccessful, the court may decide on the terms itself. 

Subsection (d) states that payments of compensation are not the same as fines or alternative punishment, and should not be included under provisions referring to these items.

Relation to other laws.  Maldivian law acknowledges the possibility that an offender and a victim might reach an agreement on compensation.[13]  However, under the new system, the compensation will not preclude punishment.  Allowing an offender to avoid punishment by paying compensation fails to punish the offender for his culpable act and treats the act like a simple case of civil negligence.  Moreover, the offender will not be deterred from committing the offense again, since the worst penalty provided would be to lose the benefit he had made from the crime, and he might escape punishment and get to keep that benefit.

Corresponding Provision(s):  None

Comment:

 Generally.  Subsection (a) mandates that an offender’s baseline sentence be mitigated one level if, before trial, he credibly and publicly acknowledges guilt and credibly and publicly expresses remorse.  The “before trial” requirement should be enforced in accordance with Maldives Rule of Criminal Procedure 6.03(a), according to which a trial begins when the court “call[s] the trial to order.”  No acknowledgment of guilt or expression of remorse after that point is of any effect.  Note, however, the proviso in Subsection (b): an offender who submits a valid guilty plea will not necessarily receive this mitigation. 

 The “credible and public expression of remorse” requirement presents more difficulties.  An “expression of remorse” must be an apology of some kind.  An expression of remorse is “credible” if it is sincere and consistent with the offender’s other statements.  For example, an offender’s expression of remorse would not be credible if he apologized for his offense in open court and later denied committing the offense in a newspaper interview.  An expression of remorse is “public” if it communicates effectively the offender’s remorse to the community at large.  Generally, an offender’s expression of remorse may be deemed “public” if it is witnessed by a substantial number of people, or published or broadcast in a medium (such as a newspaper, television, or website) that is viewed by a substantial number of people.

Corresponding Provision(s):  None

Comment:

 Generally.  This Section provides a mitigation for offenders who have attempted to aid the authorities in apprehending fellow offenders.  This sentencing factor rewards such actions because they may indicate an offender’s good intentions or repentance after a crime is committed.  Furthermore, the availability of this mitigation may also encourage offenders to aid the authorities.

Subsection (a) provides that the government may move to mitigate an offender’s baseline sentence by up to three levels if the offender substantially cooperates with law enforcement authorities in the capture or prosecution of another offender.  The substantial cooperation required by Subsection (a) does not vary with the amount of mitigation requested in the government’s motion.  Note that this Section permits the government to move to mitigate the offender’s baseline sentence only if the offender’s substantial cooperation contributes to the “capture” or “prosecution” of another offender.  “Capture” should be construed to mean the lawful arrest of another offender under Maldives Rule of Criminal Procedure 2.06; “prosecution” should be construed in accordance with Section 61(e): “[a] prosecution for [an] offense commences on the date the charging document is filed for an offense.”  Thus, an offender’s substantial cooperation that contributes to neither the lawful arrest of another offender nor the filing of a charging document against another offender cannot ground a government motion for mitigation under this Section.  

Subsection (b) adds that the sentencing court must grant the government’s motion for mitigation if it finds the “substantial cooperation” required by Subsection (a), and that the sentencing court may not, on its own motion, mitigate a sentence on the ground of the offender’s substantial cooperation.  The crucial term in this Subsection is “substantial cooperation.”  The sentencing court must defer considerably to the government’s assertion that the offender has substantially cooperated with law enforcement authorities.  The sentencing court may reject the government’s assertion only if it finds clear and convincing evidence either that the offender did not cooperate, or that the offender’s cooperation was not substantial.  If the sentencing court denies the government’s motion, Subsection (b) precludes the sentencing court from independently searching the record for other instances of substantial cooperation.

Corresponding Provision(s):  None

Comment:

 Generally.  This Section provides a mitigation for those who commit an offense because of an imperfect justification.  The rationale for this factor is that offenders who think they are justified in committing an offense, but whose reasons do not in fact rise to the level of a true justification, are less blameworthy than those who commit offenses they know are not justifiable.    Subsection (a) provides that the offender’s baseline sentence shall be mitigated one level if, at the time of the offense, the offender believed that his conduct was justified by a justification defined in Chapter 40; Subsection (b) requires that the baseline sentence be mitigated two levels if, in addition, the offense and the offender’s conditions and circumstances came close to providing a complete justification defense.  Several points bear clarification here.  First, the sentencing court must evaluate the offender’s belief, the offense, and the offender’s condition and circumstances as they were at the time of the offense.  Second, to qualify for the one-level mitigation under Subsection (a), the offender need only have had a sincere subjective belief that his conduct was justified under Chapter 40; even a manifestly unreasonable, sincere belief satisfies the requirements of Subsection (a).  

Third and most important, the meaning of the phrase “came close to providing a complete justification defense” varies with the justification defense asserted by the offender.  The sentencing court should refer to the commentary for Chapter 40 when determining whether to mitigate the baseline sentence two levels under Subsection (b).

Corresponding Provision(s):  None

Comment:

Generally.  This Section provides for a mitigation when the offender substantially satisfies the requirements of an excuse defense.  This sentencing factor accounts for the exculpatory factors considered in Chapter 50.  Generally, the defenses outlined in that Chapter excuse a person whose capacity to control himself or to perceive reality or the nature of his conduct is so limited that society should not punish him for that offense.  The reason for that excusing condition may be one of many: insanity, immaturity, duress, involuntary intoxication, etc.  However, such capacity varies widely from one offender to another, along a spectrum of capacity and culpability ranging from a person in complete control of his faculties to a person who is unconscious.  How one draws the line as to what level of incapacity or lack of culpability constitutes a complete defense is somewhat arbitrary. Regardless of where that line is drawn, some defendants will almost achieve a complete defense.  These offenders will be able to show a lack of control or culpability for their actions that approaches the point where they would obtain a complete defense.  Treating these defendants the same way as defendants who acted with complete control over themselves would ignore an important distinction in culpability.  For this reason, this sentencing guideline mitigates the sentence for those defendants with only limited capacity to control themselves and to perceive reality. 

 For example, consider a defendant who suffers from a mental illness.  If his illness is so severe that he cannot control himself or loses all touch with reality, the defendant may obtain a complete defense.  However, relatively few defendants suffer from such severe mental illness.  For many defendants who do not obtain such a defense, their illnesses are contributing causes to their offenses.  Insofar as the illness limits a defendant’s capacity to control himself, that defendant deserves less punishment.  For a defendant with a truly limiting mental illness, a twolevel mitigation will be appropriate.  For a defendant whose mental illness had only modest impact on his capacity and culpability, a one-level mitigation will be appropriate.  Note, however, that this mitigation is not automatic.  Someone who happens to have a mental illness but whose illness had little if any impact on his rational decision-making process would not benefit from the mitigation.  Automatic commitment to a psychological facility is not a consequence for benefiting from this mitigation.

 In Sections 52 and 56, the Code refuses to consider antisocial personality disorder as a psychological illness for the purpose of the statute.  Neither should antisocial personality disorder be considered as grounds for this mitigation.  Antisocial personality disorder is an illness identified entirely by its symptoms rather than its origins.  As the symptoms for the disorder include propensity to violence, irritability, inability to get along with others, etc., the disorder’s definition simply defines violent criminality as an illness, without providing any reason to excuse offenders with that disorder.

 The above discussion of the availability of the mitigation for mental illness is analogous to the availability of the mitigation for cases involving involuntary intoxication, immaturity, and impaired consciousness, other excuses made available under Chapter 50.  Since the excuse defenses contemplate similar physiological impairments of the rational decision-making process, the same concerns should attach.  For examination of the underlying purposes of these excuse defenses, see the commentary to Chapter 50. 

 The duress defense is slightly different from the other defenses, so duress deserves a special discussion as a mitigation.  Winning the duress excuse defense requires showing that a person of reasonable firmness would not have been able to resist the threatened harm.  However, if a person is threatened with real harm that does not meet that standard, then that person is still not as culpable as another who commits the offense without any threat being posed to him.  While a threat to expose a family secret, for instance, might not justify an excuse defense to the embezzlement of a modest sum, the coercive impact of that threat may justly be considered under this mitigation.  Further, even though the complete duress defense is not available as a defense to a murder, an offender who commits a murder under threats of serious harm is not as culpable as a murderer who kills in the absence of such threats.  For that reason, a mitigation for duress may be obtained for a murder, even though the full excuse is not available.

 As for the ignorance or mistake of law excuse and the mistake as to a justification, the mitigation might be applicable to those defenses where a person’s mistake was not reasonable but made in good faith.  Alternatively, a defendant might receive the benefit of the mitigation where he received an official misstatement of the law from a public servant who was not of the authority that would grant him a complete excuse, but on which the defendant still relied. For instance, if a police officer erroneously assured a person that certain fishing practices were legal, the advice would probably not meet the requirements for the complete defense.  However, if the person relied in good faith on that advice, a court might take that as a reason to mitigate the sentence of the offender.  The offender should have taken better care to ascertain what the law is, but at least the offender made some effort and relied on his findings.

Corresponding Provision(s):  None

Comment:

Generally.  Under this Section, an offender who committed his crime under extreme emotional distress should have his sentence reduced below the baseline.  The importance of this mitigating factor is recognized in the Code in Section 110, where a defendant acting under extreme emotional distress will have his murder conviction reduced an entire grade. In the case of murder, that grading factor should take precedence over this one, but this mitigation should apply to all other sections of the Special Part. 

Subsection (a)(1) requires that a person establish that he committed the offense under extreme mental or emotional disturbance.  This disturbance could be a highly emotional episode, such as fear, anger, or frustration; a period of mental stress imposed by external factors; or any other form of distress that might limit a person’s capacity for self-control.  This mitigation is broad and reaches many mental and emotional conditions not otherwise provided for, notably those not deriving from a preexisting mental illness. 

Under Subsection (a)(2), the offender must then establish that the disturbance arose from a cause for which there is a reasonable explanation.  The purpose of this requirement is that the Code should not encourage people to refuse to control their emotions.  Everyone is afflicted with anger or fear or frustration at one time or another in their lives.  Only those episodes of remarkable stress or significance should suffice for the purposes of this requirement.  A man who becomes trapped in an elevator with another man who has recently raped the first man’s sister might beat the other man severely.  The assault should not be condoned or excused, because retribution is not a valid justification for an assault.  However, the moral distinction between that man and one who assaults another with little cause should be considered in sentencing.  

The provision under Subsection (a)(2) requiring that the sentencing judge consider the facts as known to the offender at the time of his conduct safeguards the offender from having an unreasonable standard applied to him.  The offender acted in light of the limited and imperfect knowledge that any person has in the moment of his actions.  Through investigation after the fact, anyone can gain a clearer picture of the facts; however, the judge must recognize the limitations of the facts as known to an offender. 

Corresponding Provision(s):  None

Comment:

Generally.  The purpose of this Section is to reinforce the importance of the statutory limitations established in the General Part and ensure that they are carried out.  After the sentencing judge has used the offense definition and the relevant sentencing factors to calculate a sentence, his final determination is nevertheless constrained by this Section.  This is to ensure fairness in the administration of criminal justice.  

The sentencing guidelines do not in any way diminish the importance of statutory maximums, which provide a guarantee to the defendant and assure him of what punishment he can expect.  At the same time, a defendant who receives multiple mitigations should never fail to receive punishment or be sentenced to punishment that is without meaning.  Only the conduct that the General Part describes as conduct not fulfilling the requirements of culpability, as justified conduct, or excused conduct is blameless conduct and thus not punishable.  A person who does not obtain one of these exceptions or defenses should not escape punishment, even if that punishment is mild.  The punishment mandated by courts should always have meaning and should always match the guilt of the offender. 

Corresponding Provision(s):  None

Comment:

Generally.  The purpose of this Section and Section 1202 is to guide the sentencing court in determining which punishment should be applied and what portion of the total punishment each punishment should comprise.  Each individual case will inevitably be different.  The circumstances of the individual offender, the nature of the offense, and the resources available to the State should determine which punishments an offender should receive.

This Section deals with the punishment of incarceration.  While incarceration is fundamental to any system of punishment, it is not the sole, or necessarily even the primary, means of punishment.  Incarceration achieves certain goals well and serves other purposes poorly.  Incarceration is unquestionably the best means of controlling an offender’s dangerousness to society during the period of his imprisonment.  Incarceration is also an important means of showing the gravity of an offense.  Incarceration is also the most restrictive of the available penalties, so, if imposed, the punishment should generally be imposed as the first step in the punishment process, with alternative sentences as subsequent punishment, gradually giving more and more freedom back to the offender.  If incarceration were imposed later in the punishment process, incarceration could disrupt the rehabilitative effects achieved by the alternative punishments.  For instance, if an offender were sentenced to incarceration and a drug treatment program, the offender should first be incarcerated and be treated for drug addiction either concurrently with or subsequent to his incarceration.  If the offender were treated for his addiction and then incarcerated, the offender would be more likely to relapse into drug use. 

Subsection (b) contains an important requirement for the use of incarceration.  If a person is convicted of a serious offense, defined as a felony offense against the person or another offense graded as a Class 1 or Class 2 felony, the person should serve a period of incarceration of at least one-fourth of his punishment.  In most cases, substituting alternative penalties will simply be impractical, as imposing serious punishment entirely in the form of alternative penalties would mandate impossibly long periods of supervision or treatment or grotesquely large fines. 

Beyond the practical difficulties of adequately punishing a serious offense with alternative punishments, incarceration often sends the most direct retributive message.  In these cases of serious offenses, a person must serve a term in prison to show the seriousness of the offense.

Corresponding Provision(s):  None

Comment:

Generally.  This Section discusses why and how certain alternative punishments should be applied.  In many cases of minor offenses, the alternative punishments will be appropriate as punishment on their own.  In other cases, particularly in the case of serious offenses, alternative punishments should be imposed alongside incarceration.  The particulars of a certain case may also indicate that a certain punishment is not appropriate for a particular offender.  A sentencing court should keep in mind that the punishment should retain punitive value. 

 The first punishment discussed in this Section is house arrest.  House arrest can be an effective punishment for relatively minor offenses.  House arrest will often be an appropriate first step in a transition from incarceration to freedom.  Factors particularly worth considering in determining whether or not to impose house arrest are the benefits to society and the offender’s family in having the offender at home and the benefits to the offender of living in his home.  An offender who has committed a nonviolent offense and who plays an important role in the home might be a good candidate for house arrest, as might an elderly or sick offender who has committed a nonviolent offense and who can get better care from his family than might be available in prison.

 Community service is often an appropriate secondary punishment, except in the most minor of cases, where it may be the sole form of punishment.  Community service may be served concurrently with almost any other form of punishment.  For instance, a person might do community service at the same time that he serves a sentence for house arrest, incarceration, or intensive supervision.  Community service should be tailored to remedying the same kind of harm that the offender caused.  For instance, a person who commits property damage could be sentenced to clean up graffiti or damage caused by other vandals.  Alternately, an offender with particular skills might be an appropriate candidate for community service, if those skills are in need.  For instance, a physician convicted of defrauding his patients could be sentenced to work in a free government clinic without payment for a certain period. 

               Fines are often an effective means of punishment, one that impose no costs on the State. 

It is important, however, that an offender not be thought to be “buying” his way out of serious punishment.  The fine must fit the offender’s resources in such a way that the fine properly punishes the offender.  Moreover, a fine should not be imposed on an offender if the offender has no means of paying the fine.  Like community service, fines typically will be a secondary means of punishment, except in the least serious cases.

 Intensive supervision is an appropriate punishment for most offenders, especially where such supervision helps reintegrate the offender into productive society.  After a period of incarceration or house arrest, intensive supervision allows the State to continue punishing the offender while granting the offender more freedom.  Because a period of intensive supervision requires active participation by the offender, only an offender capable of cooperating with the supervision should be considered eligible for this punishment.  A careful distinction also should be maintained between intensive supervision and probation; the two are similar, but intensive supervision is a far more restrictive program of punishment.

 Treatment programs can help counter some of the primary causes of criminal activity.  Requiring an offender to participate in anti-addiction programs and psychological counseling can strike at the core causes of criminality and prevent further offenses. Treatment programs can be imposed concurrently with other forms of punishment. 

A period of probation is often the most appropriate last step in integrating an offender back into society.  Probation is the least restrictive means of punishment available.  Probation rarely should be the sole means of punishment. 

Corresponding Provision(s):  None

Comment:

Generally.  Since alternative punishments often require cooperation by the offender, it is necessary to provide for the case of the recalcitrant offender.  If an offender does not comply, the punitive value of the alternative punishment is diminished.  For this reason the offender should be returned to incarceration, to serve the remainder of his sentence as if he had never had that alternative sentence imposed.  Generally, the word of the government should be sufficient to return the offender to jail, though the offender should have the right to respond to the government’s allegations of failing to comply with the terms of an alternative punishment.

Corresponding Provision(s):  None

Comment:

Generally.  The death penalty is the most serious punishment available.  The penalty is irreversible once imposed.  For this reason, before imposing the death penalty, the State must be absolutely assured of the guilt of the offender, and the offense must be of the gravest kind. In the event the State seeks the death penalty, the State must meet all of the evidentiary requirements imposed in this Section.  Moreover, if the death penalty is imposed, the offender will have a right of appeal to the Supreme Court for complete review of all findings.

Corresponding Provision(s):  See relevant offense sections of commentary to Special Part.

Comment:

Generally.  This Section deals specifically with offences for which punishments are explicitly mentioned in the Qur’an.  It is meant to function in conjunction with, not separately from, the relevant provisions in this Code relating to crimes punished in the Qur’an.  These crimes are: Sections 110-112 (homicide offenses - qatl), Sections 211-216 (theft offenses - sariqah), Section 411 (unlawful sexual intercourse - zina), Sections 610 (rioting; forceful overthrow of government - hiraba) and Section 612 (false accusation of unlawful sexual intercourse – qadhf).  No other offenses should be construed as falling in this category.  Judges should primarily rely on the offense definitions and punishments provided for these crimes in the specific Sections where they are discussed.  Certain punishments, like amputation, that are mentioned in the Qur’an are not included within this Code.  This Section does not allow for the introduction of amputation or any other punishments not specifically mentioned in the Code.  The Code serves as the authoritative interpretation of criminal law, including hudud punishments, within the Maldives.  

The guidelines throughout this Code, specifically in the Code’s introduction, the introduction to Chapter 90 and commentary to Section 15, should be strictly followed when it comes to the application of hudud punishments.   As a result, Section 1205 should never be seen as trumping other relevant parts of the Code.  Furthermore, as Egypt’s primary body for issuing Islamic legal opinions, the Dar al-Ifta al-Missriyyah, has stated: halting execution of hudud punishments like amputation is acceptable given the “extreme difficulty of meeting the necessary conditions” for application.[14]  The key role of repentance (tawbah), historically emphasized by Muslim jurists, to avoid hudud penalties should be given significant weight.  Additionally, as mentioned in the introduction, Islamic legal tradition includes legal maxims (qawa‘id fiqhiyya) and one in particular that was central to judicial decision-making regarding application of hudud punishments: “avoid criminal punishments in cases of doubt” (idra’u ’l-hudud bi’l-shubahat).[15]  Ibn al-Mundhir has noted that this is one of the few principles on which all Muslim jurists have reached consensus.[16]  Imam al-Shafi’i states that hudud punishments in cases of doubt must particularly be avoided for corporal or capital punishments.[17]  Doubt is defined broadly to include “factual uncertainties, legal ambiguities and even extralegal considerations.”[18]  Historically, jurists generally mitigated hudud punishments (based on a variety of factors) even while enforcing hudud offenses.  Hence, the wide-scale application of hudud punishments is rare in Islamic history.  Similar wisdom should be instructive with regard to this Code

Comment: 

Generally.  This Section collects defined terms used in Chapter 620 and provides crossreferences to the Sections in which they are defined.

 Relation to other laws.  For discussion of the relationship between Chapter 620’s defined terms and Maldivian law, refer to the commentary for the Section in which each term is initially defined.