From warrantless searches to asset seizures: inside the new Maldives gang law
A breakdown of the 103-page Act's key provisions.
Artwork: Dosain
28 May, 3:59 PM
Mohamed Junayd
The new gang crimes law ratified on Sunday grants sweeping powers to the police to override constitutional rights in combating organised crime.
After the first reading in February, the prevention of gang crimes bill appeared to have divided opinion within the 75-seat People’s National Congress supermajority. The government-sponsored legislation was accepted with 42 votes as 19 PNC MPs chose not to vote either way.
For its review of the bill, the judiciary committee consulted with officials from the police, Prosecutor General’s office, juvenile court, Attorney General’s office, the Department of Judicial Administration and the Human Rights Commission during a meeting that was held behind closed doors after a police request for a secret session.
When the bill came back to the floor, only five ruling party lawmakers who were present refused to vote in favour. Eleven MPs from the opposition Maldivian Democratic Party abstained. The bill was passed with 55 votes from the 93-member house.
The Prevention of Gang Crimes and Other Serious Offences Act replaces two 2010 laws that dealt with intimidation, gang violence and the use of dangerous weapons and sharp instruments.
Here's a breakdown of the key provisions from the new 103-page law:
What’s the law about?
It sets out penalties and outlines law enforcement powers for prevention and investigation.
Four key objectives:
Defining organised and other serious crimes, including illicit enrichment, and providing punitive measures in law.
Granting “special powers” to enforcement agencies to take action against perpetrators and suspects.
Preventing and removing children and adolescents involved in organised crime and enabling measures for reintegration to society.
Providing measures to “monitor and control” individuals affiliated with organised crime.
What new powers do police gain?
A court warrant will not be needed to detain and search an individual associated with a gang, based on a reasonable suspicion that the individual has committed, is in the process of committing or is about to commit a “major organised crime” or is in possession of dangerous weapons or sharp instruments.
Such individuals could be arrested without a warrant if there is reasonable grounds to suspect that they might commit a crime without immediate police action. But a police officer with the rank of sub-inspector or higher must sign off before the warrantless arrest. The criminal procedures law must still be followed in processing the arrest, advising caution and issuing notification.
Can the police enter homes?
Warrantless searches are allowed if the suspect is in a public space. A court order or the owner’s permission would still be required to enter and search private premises.
Police will not require a warrant to temporarily enter a private space in order to execute a warrantless arrest. The law grants the power to execute a search of such premises without a warrant.
If there is reasonable suspicion of key evidence within a private space, which could be concealed, tampered with or destroyed without immediate action, police could execute a warrantless search and arrest suspects inside such premises. Such searches must be conducted in the owner’s presence.
Vessels suspected of being used to commit a serious crime can be stopped, boarded and searched.
What other rights are restricted?
Legal representation could be restricted for individuals suspected of serious organised crimes, recruitment or operation of a criminal gang. During the initial 48 hours of the investigation, private consultation with a lawyer can be prevented if there are reasonable grounds to believe that the meeting or conversation could hinder the investigation or allow the suspect to tamper with evidence, warn accomplices, intimidate witnesses or plan a serious organised crime.
Nonetheless, if police wish to question the suspect at that stage of the investigation, the suspect must be allowed to meet with legal counsel in private.
Courts must remand individuals arrested in connection with serious organised crimes or the operation or recruitment for a criminal gang. Suspects will not be eligible for bail.
What about the right to remain silent?
The right can be restricted. If the accused remains silent when questioned about a specific allegation, the decision could undermine their defence during the trial. If the defendant submits evidence related to the questions unanswered during the investigation, the court could rule that it is inadmissible. The judge in cases of serious organised crime will have the discretion to deduct any material testimony if the defendant seeks to use evidence after exercising the right to remain silent.
This applies to defendants questioned about sporting symbols associated with a criminal gang based on reasonable suspicions.
How does monitoring work?
Suspects can be placed under surveillance after police obtain a “monitor and control order” from a court. Under a “monicon” order, police can seek a host of measures that could potentially infringe on civil liberties, such as restrictions on movement, travel, transactions, social engagements, and types of product that a suspect is allowed to use.
The range of measures under a monicon order also sets severe restrictions on privacy. Police are allowed to collect information on people who live in the same household as the suspect, prevent others from visiting, impose curfew hours, and prohibit travel to a particular place for a specified period of time.
So what is a “major organised crime”?
Article 33 defines serious crimes as murder with intent; dangerous assault and battery (use of a dangerous weapon or sharp instrument to fully or partially injure an organ); inflicting a serious physical injury (acts of battery that fall outside the defined terms of “dangerous assault and battery”); kidnapping and threats and intimidation (to kill or physically harm someone and to vandalise or damage property).
These crimes carry fines of up to MVR 10 million (US$ 646,830) and prison terms between eight years and life sentences.
Other offences that could be considered major organised crime:
Drug trafficking (17/2011 Drug Act)
Human trafficking (12/2013 Human Trafficking Prevention Act)
Sale of banned items or products
Forgery of “valuable” items (penal code 310)
Dangerous crime
Violent crime that carries a prison sentence of more than 10 years
What is a gang then?
According to the definition in the law, an “organised crime group”; criminal enterprises and criminal syndicates; other such groups of three or more people working together in an organised manner to commit multiple crimes for money.
The formation, recruitment, support and membership of such groups was criminalised with hefty fines up to MVR 10 million and prison sentences of up to 25 years.
Members are defined as people associated with such groups with or without formal positions and responsibilities. This includes people who sport logos or symbols associated with a group, unless proven otherwise.
Symbols?
The law prohibits the use of symbols including names, drawings, writings, logos, seals and mottos associated with organised crime groups. Exceptions include academic research, news reporting and use by law enforcement for training or crime prevention.
Who can designate an organised crime group?
Based on the criteria set out in the law, the Prosecutor General must ask the High Court to designate a group as an organised criminal gang. The submission should be based on police intelligence reports, other applicable evidence and a recommendation from the police chief.
The law does not distinguish between associations or groups that are registered legal entities or groups with no legal standing. The court must provide notice and share legal documents related to the submission to the defendants, who must be offered the opportunity to respond and challenge the PG’s motion for designation. The High Court must hold hearings to weigh the evidence and rebuttal before making a decision based on the law’s criteria and guidelines.
Once the court designates a group as a criminal gang, the PG must publish an announcement in the government gazette. The designation will be valid for two years unless renewed or voided. Changes in the name or membership of a designated gang, or the dissolution of the group to create a new one will not affect the designation.
The special law enforcement powers could only be exercised against a group or an individual associated with a duly designated gang.
What about illicit enrichment?
Based on the income of an individual associated with an organised crime group, prosecutors can ask the High Court to declare illegitimate income as illicit enrichment. The onus to prove that any additional income is legitimate falls on the individual.
Upon ruling that property or funds are ill-gotten, the court has the power to order the seizure of property, assets or money into state ownership.
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