In late November, the high court sentenced a man to death based on a murder confession he had retracted in court, prompting concern that the verdict heralds a return to a tradition of confession-based sentencing, instead of building cases on solid evidence.
Mohamed Nabeel was accused of throwing a box cutter at a man who was alleged to have sexually harassed his sister in March 2009. The blade penetrated Abdulla Farhad’s lungs, caused internal bleeding and led to his death, according to doctors.
During the police interrogation, Nabeel who did not have legal representation confessed to throwing the blade at Farhad. His sister, 16 years at the time, also said she had seen him throw the blade.
However, in court, both Nabeel and his sister retracted their confession. Nabeel’s lawyer said he was coerced into confessing.
“Before the interrogation, he was given cigarettes and drinks and was told the only choice left for him was to give his statement in a certain way and signing the statement. In the interrogation stage, he was threatened and psychologically weakened and told he could only save himself if he did as [the police officers] said.”
The confession is invalid as Article 52 of the constitution clearly states confessions are only admissible as evidence if it is made in court by the accused, Nabeel’s lawyer contended.
However, high court judges deemed the confessions valid, pointing to videos of the interrogation that appeared to show both Nabeel and his sister gave their statements freely. They upheld the lower court’s verdict; also noting three other individuals had said they witnessed Nabeel attacking Abdulla Farhad.
The case will now go to the Supreme Court, and if found guilty of first-degree murder, Nabeel will be executed. The Maldives ended a six-decade old moratorium last year and is planning to build a facility to implement the death penalty next year.
Chances of Nabeel’s death by the state is high as all of Farhad’s relatives want qisas, or retaliation in kind. The high court in a separate ruling last month said the head of state does not have the authority to commute the death sentence if all heirs desire qisas.
The case has fuelled debate among lawyers, with some saying that if the Supreme Court finds Nabeel’s confession admissible, Article 52 of the Constitution would become irrelevant and insignificant.
Mahfooz Saeed, a junior member of former President Mohamed Nasheed’s legal team, told The Maldives Independent that the provision was put in place to put an end to the “tradition of confession based conviction.”
“Article 52 is a very powerful provision, which does not relate to any other article in the constitution. The sole aim of this article is to only accept the statement of the accused in a court instead of statements made in police investigations,” he said.
If the courts adopt the precedent set in Nabeel case the accused would have “slim chances of escaping unjust punishment,” he said
“There are thousands of things that go behind an investigation that the judge doesn’t see and which can’t be proven in court. The police coax the accused, gave him cigarettes and told him he would be released if he gave a statement implicating himself. Then they submit the statement to court. The accused cannot prove anything that goes on behind the investigation.”
Former Deputy Prosecutor General Hussain Shameem meanwhile said the entire ruling was invalid, as judges had failed to consider requirements in the new penal code that came into force in July.
The new law differentiates between first-degree murder and manslaughter, while Article 1204 of the new penal code sets stringent conditions of proof that must be met before a person could be sentenced to death
Article 1204 also states that confessions cannot be used to convict a person “unless the defendant testifies in open court and under the advice of counsel, and confessing every element of the crime.”
The penal code also outlines several evidentiary requirements; all witnesses must undergo evaluation to establish their capacity and competence to tell the truth, and no piece of evidence or testimony can contradict the other.
Judges must apply the new penal code, regardless of which stage of appeal the case has reached, Shameem argued, as the constitution states that the accused is entitled to the benefit of the lesser punishment, if a punishment for an offence has been reduced between the time it was committed and the time the sentence is delivered.
Another lawyer also raised concern over lack of due process during Nabeel’s interrogation.
Defence lawyer Ahmed Thalib said: “In this specific case Nabeel made the confession without a lawyer. His sister did not have a lawyer. This was just after the new constitution. He wouldn’t have known the consequences. It is outrageous to think Nabeel or his family would know the implication of such a statement.”
He added: “In my view rule of law has been abandoned in this case and it’s set a precedent now that the high ourt has upheld the verdict.”