Maldives, Republic of


*Please note this is just a draft and all contents are still under revision.*


 

Legal Table
Legal Text

Legal System/History

The legal system is based on English common law and Islamic law; the former is particularly influential in certain areas such as commercial law.

The Maldives were never under direct British rule but had the status of a protected state without actually becoming a protectorate. Full independence from protected status under the United Kingdom was obtained in July 1965.

There appears to be little information available in English on the legal history of the Maldives, apart from anecdotal tales of travelers.

School(s) of Fiqh

Shafi’i majority, Ja’fari minority; officially only non-Muslim Maldivian residents are expatriates as Maldivian law also only grants citizenship to Muslims.

Constitutional Status of Islam(ic) Law

 

The Constitution came into effect on 1st January 1998.  Article 1 identifies was adopted identifies Maldives as a “democratic republic based on the principles of Islam”; Article 7 states that Islam is the state religion;  Article 16 allows for criminal defense “in accordance with shari’a”; Article 23 protects property rights, except “as provided by law or shari’a”; Article 25 allows for limits on free expression for the purpose of “protecting the basic tenets of Islam”; Article 38 states that the President is the “supreme authority to propagate the tenets of Islam”; Article 156 states that “law includes the norms and provisions of shari’a”.

Court System

Judges are appointed by the President and removable by him; judges must be Muslims; there is a High Court in Male and lesser courts of a number to be determined by the President. No jury trials. High Court serves as court of appeal, and ultimate appeal lies with the President.   Shari’a is incorporated into legal system.

Relevant Legislation

Law on the Protection of the Rights of the Child (Law 9/91)

Notable Features

Marriage Age: According to custom, the minimum age for marriage is 15; the Law on the Protection of the Rights of the Child discourages marriage before the age of 16.

Child Custody and Guardianship: Children under 7 years will, primarily, remain with their mother; if this is not deemed appropriate (if, for example, the mother is to remarry and have other children), custody will be offered to the maternal grandmother, the paternal grandmother or the father, in descending order of priority. Children over the age of 7 years can choose in whose custody they wish to remain.

Law/Case Reporting System

Government Gazette

International Conventions (with Relevant Reservations) & Reports to Treaty Governing Bodies

CRC – signature 1990, ratification 1991 with reservations to Arts. 14(1) & 21

CEDAW – accession 1993 with general reservations regarding any provisions contradictory to the shari’a or Maldivian tradition, and legal and constitutional autonomy

Legal History:

The Republic of Maldives was never under direct British rule. As the British came to control virtually all of the area of the Indian Ocean by the late nineteenth century, the Maldivian Sultan established an agreement with the Governor of Ceylon in 1887. This agreement allowed the Maldives to enjoy the status of a protected state without actually becoming a protectorate. Thus, the British only controlled external affairs and had no jurisdiction to involve themselves in the internal matters of the islands (although it is said that attempts at interference in internal affairs were made at times). The Maldives obtained full independence from their protected status under the United Kingdom in July 1965.

The legal system is based on an admixture of Islamic law and English common law, with the latter being more influential in some areas, such as commercial law. With relation to personal status, the basis for the law is the shari’a, as adapted to the modern Maldivian judicial system. Much of what is known about the legal history of the Maldives is of an anecdotal nature and is drawn from the works of travellers who had visited the islands at different times. There are indications that Persians had visited the islands by the sixth century, and there are also numerous accounts of European travellers such as the Frenchman François Pyrard who was shipwrecked in the Maldives in 1602. One of the most well-known travelogues including the Maldives is that of ibn Battuta who served as the chief Qadi of the islands for over a year. From his own account, he attempted to enforce certain hadd penalties, e.g., for theft (though it is not clear whether he actually introduced or reinstated them); some of these punishments were unknown to the Maldivians and later fell into disuse. Article 7 of the Maldivian Constitution prohibits the infliction of physical injury.

Schools of Fiqh: Maldivians are mainly Shafi’i with a Ja’fari minority, though the Maliki school predominated until the sixteenth century. The only non-Muslim Maldivian residents are expatriates as Maldivian citizenship is only granted to Muslims.

Constitutional Status of Islam(ic Law): Before conversion to Islam, Arabic and Persian sources indicate that women often served as rulers of the Maldives. Historical records indicate that there has long been some form of democracy in the Maldives, with the Sultan’s role being similar to that of a Constitutional monarch. The Sultan was aided by a number of councils, of which he (or she) was an equal member. There is evidence of Sultans being deposed for deviating from normal procedures and precedents against the advice of their counsellors. There have been at least three Sultanas in the Maldives. The accounts of women rulers date back to the fourteenth century. There have also been a number of cases where men have served in the office of Sultan in the name of the legitimate female successors. Ibn Battuta said of this that "[i]t is a strange thing about these islands that their ruler is a woman, Khadija… Where (her father) was deposed…, none of the royal house remained but Khadija and her two younger sisters, so they raised Khadija to the throne."

The first written constitution of the Maldives was adopted in 1932 and was based on customs and conventions and the traditional modes of administration. The Maldives were established as a republic in 1953 but the sultanate was restored the following year. After a referendum on the issue in April of 1968, the sultanate was abolished and the Maldives again established as a republic.

The current Constitution came into effect on 1st January 1998.  Article 1 identifies was adopted identifies Maldives as a “democratic republic based on the principles of Islam”. Article 7 states that Islam is the state religion.  Article 16 allows for criminal defense “in accordance with shari’a”. Article 23 protects property rights, except “as provided by law or shari’a”. Article 25 allows for limits on free expression for the purpose of “protecting the basic tenets of Islam”; Article 38 states that the President is the “supreme authority to propagate the tenets of Islam”; Article 156 states that “law includes the norms and provisions of shari’a”.

Court System: The Republic of the Maldives has a highly decentralised system of administration; a result of geographic exigencies as the country is made up of approximately 200 inhabited and almost 1,000 uninhabited islands. The administrative units are organised into 19 atolls, with each atoll governed by an atoll chief (atholhuvarin) appointed by the President. There is also a magistrate or ghazi on each inhabited island who deals with legal and criminal matters. Serious cases are referred to the courts in Male, the capital and twentieth administrative unit. The High Court sits in Male and, in addition to being the ultimate court of appeal, also handles any politically sensitive cases; there are also eight lower courts in Male dealing with theft, debt or property cases. There are no jury trials. Judges are appointed by the President and removable by him, and they must be Muslims. Shari’a is incorporated into legal system.     

Notable Features:  According to custom, the minimum age for marriage is 15; the Law on the Protection of the Rights of the Child discourages marriage before the age of 16.

In the case of divorce, children under 7 years will, primarily, remain with their mother; if this is not deemed appropriate (if, for example, the mother is to remarry and have other children), custody will be offered to the maternal grandmother, the paternal grandmother or the father, in descending order of priority. Children over the age of 7 years can choose in whose custody they wish to remain.

Law/Case Reporting System:  Government Gazette

International Conventions & Reports to Treaty Governing Bodies: The Maldives signed the CRC in 1990 and ratified it in 1991. Reservations made upon signature relate to the Islamic shari’a being one of the fundamental sources of Maldivian Law and not recognising the system of adoption, as well as to the provision relating to children’s freedom of religion because "the Constitution and the Laws of the Republic of Maldives stipulate that all Maldivians should be Muslims". The reservations to Articles 14 and 21 were reiterated upon ratification.

The Maldives acceded to the CEDAW in 1993, with general reservations regarding any provisions contradictory to the shari’a or Maldivian tradition and legal and constitutional autonomy.

Background and Sources: Initial reports of States parties due in 1993 : Maldives 05/08/96. CRC/C/8/Add.33; Bell, The Maldives Islands: Report on a Visit to Male, January 20 to February 21, 1920, Colombo, 1921; Ellis & Amarasinghe, Guide to Maldives, Buckinghamshire, England, 1995; Ibn Battuta, Travels in Asia and Africa 1325-1354, trans. Gibb, Exeter, 1983; Maloney, People of the Maldive Islands, New Delhi, 1980; Redden, ‘Maldives’ in Modern Legal Systems Cyclopedia, vol. 9 Buffalo, N.Y., 1990; Robinson, ed. The Cambridge Encyclopaedia of India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan and the Maldives, Cambridge, 1989.