Top court rules ex-Tourism Minister passport appeal cannot be held in absentia

Former Tourism Minister Ali Waheed arrives at Criminal Court on January 24, 2021. (Sun Photo/Fayaz Moosa)

The Supreme Court ruled on Sunday that the appeal over the decision to release the passport of former Tourism Minister Ali Waheed – who is on trial for multiple sexual offenses including attempted rape – cannot be held in absentia.

Ali Waheed travelled out of Maldives in February, after Criminal Court lifted the travel ban order against him.

The decision was appealed with the High Court, which dismissed the case in April after the Prosecutor General’s Office failed to establish Ali Waheed’s current whereabouts, ruling the case cannot be held in absentia. The State next went to Supreme Court.

Following failure to present him to court, the Supreme Court held a procedural hearing with the State in Ali Waheed’s absence. The State requested that the appeal be held in absentia, citing that Ali Waheed’s victims were being denied their right to justice. The State asked that the court balance the rights of the defendant and victims when making its judgement.

The Supreme Court made its decision in the case on Sunday. The court said that the right to be present is a constitutional right, and cannot be restricted unless through a law passed by the Parliament.

The court said that same as other constitutional rights, restricting the tight to be present at trial through interpretation of legal provisions is unconstitutional.

Th court noted the State failed to cite any law passed by the Parliament which allows for the case to be held in absentia.

The State argued in court that Ali Waheed, in failing to present himself despite knowledge that his attendance is required, forfeited his right to be present.

The court said that a situation where a defendant can be tried in absentia and a situation where a defendant has the right to seek legal assistance, defend himself, and discuss the case with the lawyer of his choice as declared in the Constitution is beyond comparison.

The court said the right to be present at trial isn’t a “choice”, and cannot be restricted – even during a state of emergency.

The State pointed out in court that though Criminal Court Judge Hassan Saeed, who lifted the travel ban order, said in court that Ali Waheed’s passport was being released for the period of four months, the court order makes no mention of the time limit, and the only papers the time limit is mentioned on is the papers to State Minister for Sports Assad Ali – who signed as Ali Waheed’s guarantor.

The Supreme Court said that though the court order makes no mention of a time limit, given that it is mention in Assad Ali’s agreement with the court, it can be taken as the deadline for the release of the passport.

The court said there is no legal obstacle to submitting for a review of the order with the Criminal Court, once the time period expires and the agreement is found to have been violated.

The three justices who oversaw the case – Justice Mahaz Ali Zahir, Justice Azmiralda Zahir, and Justice Dr. Mohamed Ibrahim unanimously agreed the case cannot be held in absentia.

Ali Waheed was dismissed as Tourism Minister on July 9, 2020, after allegations that he sexually assaulted and harassed multiple female employees at the Tourism Ministry was brought to the attention of President Ibrahim Mohamed Solih. He was initially asked to voluntarily resign, but was dismissed after he refused.

He has been pressed with seven charges; attempted rape, inflicting a sexual, indecent exposure, sexual assault, attempt to cause sexual assault, and two counts of unlawful sexual contact.

He pled not guilty to all seven charges during his arraignment at the Criminal Court on January 24. He faces minimum 21 years in prison if convicted of the charges.