State: Obstacle to secret testimony lies in High Court’s interpretation of legal provision, not the provision itself

Supreme Court of Maldives. (Sun Photo/Fayaz Moosa)

 The State argued at the Supreme Court on Sunday that the Criminal Procedure Code does not pose an obstacle to taking secret testimony, but that the obstacle lies in High Court’s interpretation of the provision on secret evidence in the case of former Chief Justice Abdulla Saeed.

Article 149 (a) of Criminal Procedure Code declares that secret testimony must be taken in accordance with the Evidence Act, which in turn, declares that secret testimony must be taken under the circumstances declared in the Act, and in accordance with the procedures to ensure the protection of secret witnesses declared in the Act.

However, the Evidence Act, enacted in 1976, lacks specification on the circumstances or the procedures, and has not been amended to establish the necessary provisions.

The Criminal Court found then-Chief Justice Abdulla Saeed guilty of obstruction of justice for failure to surrender his mobile phone to the police for the investigation into a controversial Supreme Court order, better known as the “February 1 order” in reference to the date the order was issued, in 2018. The sentence was overturned upon appeal at the High Court in January 2020, citing the lack of provisions regarding secret witnesses on the Evidence Act.

The precedence set by the High Court on that day has resulted in a pause on all cases at the lower court involving secret witnesses. And the State has filed a petition at the Supreme Court asking it to annul the section of the High Court ruling which makes the reference, and provide a solution to the issue.

The Supreme Court bench presiding over the case is composed of Justice Mahaz Ali Zahir, Justice Dr. Azmiralda Zahir, and Justice Aisha Shujoon Mohamed.

The Supreme Court called a hearing in the case on Sunday to accommodate several questions the bench wished to pose to the State.

Justice Mahaz asked about the obstacles posed by Article 149 of the Criminal Procedure Code to taking secret testimony, to which Public Prosecutor Ahmed Naushad said the provision itself does not pose any obstacles, but that the issue lies with the High Court’s interpretation of the provision.

“There is no obstacle to taking secret testimony, even with the Article 149 of Criminal Procedure Code as it is. But the obstacle lies in the interpretation of the provision by the High Court of Maldives,” he said.

Justice Mahaz next asked if Criminal Procedure Code’s reference to Evidence Act poses difficulties. Naushad responded that the intention when the Criminal Procedure Code was passed by the Parliament had been to pass an Evidence Bill along will it, but the work on the bill had remained pending when the term of the parliamentary assembly at the time had expired.

Naushad said the State believes the reference to Evidence Act to be a mistake.

“The State believes, in light of the aforementioned factors, that this reference on Article 149 to be a mistake,” he said.

He then referred to previous rulings issued by the High Court citing that it did not pose an obstacle to taking secret testimony.

Naushad said that it isn’t the reference to the Evidence Act on the Criminal Procedure Code, but the lack of amendment to the Evidence Act as had been planned, which poses the difficulty.

He said the Attorney General Ibrahim Riffath has stated that his office will draft amendments to the Criminal Procedure Code and Evidence Act to remedy the issue.

Justice Mahaz also inquired as to the types of cases where secret witnesses are used. Naushad responded that secret testimony is taken in cases involving major felonies such as homicide, drug trafficking, domestic violence and sexual offenses against children.

And when asked about the level of protection awarded to secret witnesses, Naushad responded that the State requests the courts to take testimony by altering the voice of witnesses, by taking testimony from a separate location as the defendant, or by keeping the identity of witnesses anonymous.

The State has asked the Supreme Court to establish assertion in the High Court ruling that the Evidence Act fails provide ways to protect witnesses to be in violation of judicial and legal standards.

The Supreme Court is expected to issue its verdict at the next hearing.