Why Maldivian courts have every right to try the FAM corruption case

After reading these news reports, I wanted to share my views on how this matter actually stands legally – addressing each point reportedly raised by Bassam Adeel Jaleel's defence, as reported in the media. But first, let me briefly provide some background on this case.

The constitution of the Maldives grants the prosecutor general an extraordinary power. Article 223(f) of the constitution (responsibilities and powers of the prosecutor general) states that if a complaint is submitted alleging that any party has committed what may constitute a criminal offence, or if such information comes to light through other means, the PG has the power to issue an order for investigation in matters where he deems it appropriate.

During the tenure of former PG and my mentor Ahmed Muizz, questions arose about how to exercise this power. The decision then was that since this is a special power, investigation orders using the term "order" should only be issued in cases so sensitive that they could shake the nation's systems or undermine public confidence in institutions. In about six years as PG, Ahmed Muizz issued only one such order – an order to the Human Rights Commission in relation to the arrest of Criminal Court Judge Abdullah Mohamed.

During my tenure as PG, I issued three orders: one related to Covid-19, one regarding allegations that parliament speaker president Mohamed Nasheed's room was bugged, and one concerning the FAM embezzlement case. Those who wish to research further can find details of these three orders, the reasons for issuing them, and their outcomes published in the PG Office's annual reports. I mention the orders here to convey the seriousness of the matter.

The FAM case was investigated by the police following my order. Before issuing it, I had studied the evidence and information available at that point and verified that the Maldives had jurisdiction to examine the case.

According to media reports, Bassam Adeel Jaleel's defence argues that the Maldives lacks jurisdiction to try this case because Maldivian authorities cannot investigate cases relating to FIFA funds.

The answer to this question is found in section 13 of the penal code (territorial jurisdiction). Under this provision, when an act that may constitute an element of a crime occurs in the Maldives, Maldivian law has jurisdiction over that offence. In this case, since the act of embezzlement occurred in the Maldives, jurisdiction is established through the conduct element. Subsection (3) of that article is even clearer: it states that regardless of where a crime is committed, the Maldivian authorities have jurisdiction to investigate crimes committed by Maldivian citizens or persons whose residence is based in the Maldives.

Having answered the first point, the legal question is settled. What remains is academic and for the sake of argument – addressing the other points reportedly raised by Bassam Adeel Jaleel's defence. His second argument is that since these are FIFA funds, the case cannot proceed without FIFA's permission. I'll examine whether these are truly FIFA funds shortly. But first, we must consider why FIFA provided these funds to FAM.

According to Article 11(1) of FIFA's Statutes, only one association per country can become a FIFA member – the official body representing that country's football. In the Maldives, FAM holds that role, granted with government approval. The government's condition is that football be developed in the Maldives. Therefore, funds received by FAM are actually funds for the Maldivian people to develop football in the Maldives.

Among FIFA's revenue sources is aid from wealthy countries to develop football in smaller nations, channelled through FIFA. For example, the Australian government's budget allocation for aid to the Maldives is sometimes disbursed through FIFA or UN agencies rather than directly to the government. The money goes to FIFA or other international organisations, earmarked for the Maldives. Countries that provide such aid document it in their accounts as funds allocated to Maldivians from their budgets. So whether received through FIFA or other organisations, this money is actually for the Maldivian people. FIFA and FAM are trustees of these funds. Embezzlement of those funds is an act against the rights of Maldivian citizens.

Combating money laundering and terrorism financing is a global effort. The 15th G7 Summit in Paris in 1989 decided to establish the Financial Action Task Force (FATF) to prevent money laundering and terrorism financing and to work on these issues internationally. The Maldives is a member of this task force. Law No. 10/2014 (Prevention of Money Laundering and Financing of Terrorism Act) is legislation aligned with FATF's principles. Chapter 4, article 23(a) of this law states that if obtaining and receiving money or transferring funds is part of a non-profit organisation's activities, the ministry of home affairs must properly monitor such organisations. Therefore, the notion that FIFA funds cannot be examined by any Maldivian authority contradicts the Anti-Money Laundering Act and would violate international agreements to which the Maldives is party to.

Bassam Adeel Jaleel reportedly expressed concern in court that FIFA might suspend Maldives football if this case proceeds. According to reports, the court ruled that since FIFA has not suspended the Maldives, FIFA must be deemed to have waived its rights.

Whether FIFA has waived its right to suspend the Maldives can only be determined by the court after clarifying FIFA's position on the matter. Therefore, the judge's ruling doesn't appear entirely sound. However, whether FIFA might suspend the Maldives over this case is a matter for FIFA to decide. Even if suspension occurs, that is not a reason to halt the ongoing case against Bassam Adeel Jaleel. Furthermore, FIFA's potential decisions are not among the things the criminal court judge is bound to consider under the Constitution and law. The talk about FIFA is a myth.

In 2015, American prosecutors brought corruption charges against FIFA and CONCACAF officials. They alleged that US$ 150 million in corruption occurred in football-related matters from 1991 to 2015. Despite all this, FIFA did not suspend American football. Therefore, investigating and acting on corruption cases is not something that leads FIFA to suspend a country.

FIFA suspends countries when third-party interference affects the running of a national association. Pakistan's Football Association was suspended by FIFA when an administrator appointed by Lahore High Court took over the association's management. FIFA objects to interference in governance. However, FIFA has never suspended any country for investigating corruption. The Maldives faces no threat of FIFA suspension for this reason – because the court case is not about FAM's governance.

American prosecutors didn't charge FIFA officials to save football. They did it to stop the misuse of large sums through America's financial systems and to send a clear message to others contemplating such acts. The same thinking applies in the Maldives. Prosecutors are not football's "saviours." Football people will save football. Prosecutors ensure that if corruption occurs, action will be taken. Prosecutors have no consultations to hold with FIFA, no discussions to have, no meetings to attend, no tea to drink.

The police brought the FAM corruption case to my attention. They also suggested issuing an order. Alongside the police, consultations were held with the Auditor General and the Anti-Corruption Commission. Full cooperation came from the police and the Auditor General. The entire investigation was conducted successfully and wisely through the skill and alertness of police investigators, with the advice and guidance of assigned prosecutors. Without the courage and practical wisdom of those involved, influence was constantly being exerted to derail this case through various channels.

The real success of this case will be ensuring that systems preventing such incidents from recurring function properly. The necessary laws exist. Under the Sports Act and the Anti-Money Laundering Act, legal mechanisms exist to properly monitor how sports associations use their funds. Capable people exist too. What's needed are people willing to do this work steadily, thoughtfully, patiently, without being "too busy."

  

Hussain Shameem served as prosecutor general from December 2019 to August 2024. This article first appeared on his blog. It has been translated and republished with permission.