Shameem warns Penal Code amendment could be used to prosecute govt officials

Former Prosecutor General Hussain Shameem has criticised the government's proposed amendments to the Penal Code, describing the provisions on economic security as a calculated attempt to criminalise the actions of government officials.

In a blog post published on Monday night, Shameem raised concerns that the proposed legislation could expose policymakers and state officials to criminal prosecution over decisions affecting the national economy.

The government-sponsored bill was submitted to Parliament on Monday by Maafannu South MP Abdulla Rifau. It seeks to introduce offences relating to genocide, economic security and treason.

The government has said the amendments are intended, in part, to fulfil the Maldives' obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, which the country joined 42 years ago.

However, opposition figures have raised concerns about the timing of the legislation, suggesting that it could be used to restrict protests against the government's agreement to allocate 500 hectares of reclaimed land in Ras Malé to UAE-based Eagle Hills.

Shameem said his principal concern was not the proposed genocide provisions but the separate chapter introducing offences relating to economic security.

He said his initial impression was that the provisions were intended to penalise opposition politicians and religious figures whose activities could adversely affect the Maldivian economy.

However, he argued that the wording of the proposed offences raised broader concerns about their potential application to government officials.

According to Shameem, the bill classifies certain acts threatening economic security as second-degree felonies when committed by individuals holding senior positions in the state or government, while treating them as third-degree felonies in other circumstances.

He also noted that the proposed provisions do not contain an explicit exception for actions taken in good faith.

Shameem said the prosecution would need to establish that an individual had taken action to halt operations in a major revenue-generating sector in order to expand another sector, resulting in substantial damage to the national economy.

He argued that such conduct had not previously been defined as a criminal offence under the Penal Code or other legislation.

Although the burden of establishing an absence of good faith generally falls on those making such allegations, Shameem said the proposed offence would not require prosecutors to prove that the accused had acted without good faith.

He warned that this could make it easier to prosecute government officials over economic policy decisions.

"Proving that a law or policy was introduced and that it disrupted a revenue-generating activity would be sufficient. The government officials responsible could then be convicted of a criminal offence," Shameem wrote.

"I do not believe this is how such matters should be dealt with."

Shameem said the law should provide safeguards for government officials carrying out their responsibilities.

"Government officials must be protected by law. Writing the Penal Code in a manner that could make almost every action they take a criminal offence creates an unacceptable situation," he said.

He added that officials must be given the opportunity to carry out the mandates entrusted to them by the public.

Shameem also raised concerns about the drafting of the proposed genocide offences.

He noted that the bill incorporates, to varying degrees, provisions from the first five articles of the Genocide Convention, to which the Maldives is a party.

However, he said it does not address the jurisdiction of international tribunals over such offences, as provided for under Articles VI and VII of the convention.

Shameem also questioned the classification of penalties under the proposed genocide provisions.

He noted that killing a person as part of an act of genocide would be classified as a second-degree felony, while murder under the existing Penal Code is generally treated as a first-degree felony.

He argued that this would effectively mean that killing someone as part of genocide could attract a lesser punishment than murder committed in other circumstances.

Shameem also questioned whether the bill had been drafted by the Attorney General's Office, despite being submitted as government-sponsored legislation.

He said it was difficult to believe the office had prepared the bill because its legal professionals were familiar with the classification of criminal offences and the provisions of international conventions.

The proposed amendments have been submitted to Parliament but have not yet been enacted into law.