The Supreme Court, in a ruling on Thursday, said that the Maldives Police Service must ensure that searches on private property and seizure of assets are carried out in accordance with the confines of the law, warning that failure to uphold the rule of law will lead to criminals going unpunished and the community left defenseless against crimes.
Hussain Sabah from Mushthareege in R. Maduvvari was sentenced to 25 years in prison in connection to three kilos of drugs found in a private office in 2011. The drugs were found in an operation run based on an intel report received by the Drug Enforcement Department. Sabah and another person were intercepted by the police from the streets, and taken to an office they ran, where the drugs were found.
The police had searched the office without obtaining a search warrant. And the sentence was overturned upon appeal at the High Court.
The Supreme Court, in a remote hearing on Thursday morning, moved to uphold the High Court’s ruling.
SEARCH CONDUCTED IN VIOLATION OF THE CONSTITUTION
Article 47 of the Constitution stipulates that property and residences may not be searched unless under a court warrant, or if failure to take immediate action may put a person or a property in imminent danger.
The State argued that the police acted under the regulation on the use of legal powers and prerogatives awarded to the police, formed under Police Act. The regulation in question states that a police officer has the authority to enter property and conduct searches if the said officer has sufficient reason to believe evidence pertaining to a case may be found from the property.
However, the Supreme Court said that the power to restrict a constitutional right lies only with laws passed by the parliament, and that a regulation formed under a law may not be used to restrict a constitutional right, for as long as the law itself does not declare the restriction.
The Supreme Court ruled that the search which led to the discovery of the drugs is therefore a violation of Article 47.
The State had also submitted fingerprints found on the packet which held the drugs, which matched with Sabah, as evidence.
However, the Supreme Court said there was no legal basis to hold Sabah liable for the fingerprints on evidence which had been obtained unconstitutionally.
The Supreme Court established that the High Court’s ruling in the case fell in line with the constitution and regulations, as all evidence submitted in the case were obtained in search which violates Article 47, and must therefore be excluded from the trial.
NON-RESISTANCE VS CONSENT
The State had previously argued that Sabah and his associate had not shown resistance when taken to the office for the search, and that their non-resistance must therefore be taken as consent.
But the Supreme Court noted in its ruling that there were no documents to establish the police had sought their consent before conducting the search, and that there was also no evidence the police informed them of the purpose of the search.
The court said there was therefore no basis to establish consent.
DISGARDING CONSTITUTIONAL RIGHTS FOR ‘GREATER GOOD’
The State argued that the police had acted in good faith. The Supreme Court said that even utilizing the exemptions for good faith, law enforcement agencies must comport their actions in accordance with the law, and may not violate constitutional rights even if in good faith.
“People may not be stripped of their constitutional rights even if in good good faith. The chance to set aside constitutional rights and freedoms out of good intentions in the fight against crime will lead to great room for abuse of power by State institutions. It will negate the purpose of declaring fundamental rights and freedoms in the constitution. Article 47 of the constitution stands to stop the police from such actions,” said the Supreme Court in its ruling.
The Supreme Court said the police had a responsibility to ascertain the legal basis on which the institution will enforce action such as searches and seizure of assets before taking such action. The court warned that failure to respect the rule of law in such matters will, in addition to stripping the rights of suspects, will result in wider consequences for the community at large, which will be left unprotected against such crimes.
“Given that the police institution is the prime institution charged with the responsibility of protecting the community from crime and ensuring the protection of the constitutional rights of individual citizens, the police must ascertain the basis on which it will conduct searches and seize assets before taking such action. Because, such action may grossly infringe on the individual freedoms of the owner of the property. Failure to respect the law does not infringe on the rights of the suspect alone, but also prevents the community from being freed from such crimes,” said the Supreme Court in its ruling.
The court said that the case served a lesson on how a person who would have likely been held accountable and punished, if a law enforcement agency had acted in accordance with the law, walk free, because the procedures set under laws and regulations had not been followed.
“The lesson from this isn’t that suspects of major crimes go free without receiving their just punishment, but that a person who may have been punished if the laws and regulations had been followed had walked free because a law enforcement agency failed to conduct its investigations in accordance with the procedures set under laws and regulations. The consequence of this is that the efforts to protect the community from such crimes are rendered useless,” said the Supreme Court in its ruling.
The Supreme Court bench which oversaw the appeal was led by Justice Azmiralda Zahir, along with Justice Aisha Shujoon and Justice Mahaz Ali Zahir.
Sabah is currently incarcerated, serving a 10-year prison sentence issued against him in connection to another drug case in 2018.