On July 18, 2022, Maldives President Ibrahim Mohamed Solih ratified the Evidence Act (Act No. 11/2022). The law was passed by the Maldives Parliament on June 30, 2022. The act “specifies the procedures to be followed when gathering evidence in civil and criminal proceedings, as well as the processes to be followed when submitting, accepting, and evaluating evidence.” It also “specifies other evidence-related elements, such as the extent of evidence required to support a claim.”
The law has stirred controversy and outcry among domestic and international media rights organizations over Article 136 of the act, which grants authority to local courts to compel journalists to disclose their sources under two exceptions. Article 136(a) is in line with Article 28 of the Maldives Constitution, which states, “No person shall be compelled to disclose the source of any information that is espoused, disseminated, or published by that person.” According to a press statement by the president’s office, Article 136(a) “prohibits any compulsion of disclosure upon the journalist or the media agency, where the journalist had acquired the information on the basis of a promise or guarantee of confidentiality, unless the source consents to such a disclosure.”
Article 136(b) of the law includes the two exceptions, however, for “instances where the information presented by the journalist relates to acts of terrorism, and where the information relates to offences relating to national security.” If the information falls within the exceptions, “the law provides that court ordered source disclosure can only be allowed in certain circumstances and only where the factors … are satisfied to the civil burden of proof.” Section 136(b) provides a “list of factors for the judge to consider in allowing disclosure of the source,” which consist of
1. Circumstances where an act of terrorism or an offence relating to national security has been committed, is being committed or will be committed (if not for the intervention);
2. Circumstance poses an immediate threat to life, body or property;
3. Public interest in disclosing the source prevails over interest in non-disclosure of the source by the journalist;
4. Circumstances present a high possibility of a miscarriage of justice, whereby the suspect or defendant gets an undeserved penalty or is unable to defend their case, on the account of the journalist not disclosing the source;
5. Knowledge of the journalist’s source is integral to the case and has a direct connection to the case;
6. The source has not been discovered after reasonably attempting to discover it through any other means not involving the journalist or the media agency where the journalist works;
7. Information presented by the journalist which has been obtained from the source is such information which is known to have no basis;
8. Request for disclosure was not intended to infringe upon or harm journalism.
Under the ratified law, “journalists who refuse to disclose a source after being compelled by the court can be found in contempt and face up to three months in jail or a fine.”
The law comes into effect six months after the act is published in the country’s legal gazette. Once it comes into force, the Evidence Act will repeal the Evidence Act (Act No. 24/76) and the Women’s Testimony Act (Act No. 14/72).
Reactions to the New Law
According to the statement by the president’s office, “[t]he right to be free from compulsion to disclose the source of information has been limited in free and democratic societies to balance the purpose and privileges of the right, with the purpose and importance of limiting the right.” It goes on to state, “while there is a need to protect journalists’ sources, there are jurisdictions where exceptions to this presumption are allowed, where disclosure of the information is deemed necessary. These include matters where interests of justice, of national security and of preventing disorder or a crime take precedence.”
Media rights and press freedom organizations, on the other hand, have called for the revision or repeal of article 136. According to the Maldives Journalists Association (MJA) and Editors Guild, the “ambiguous criteria and a lack of definition in the exceptions” under Article 136 “give courts absolute power and poses serious threats to journalists’ rights.” In a joint statement issued before passage of the law, Amnesty International and nongovernmental organizations said the “vagueness of the criteria set in the exceptions, along with the near-impossibility of reaching an objective and qualitative assessment on an anonymous source, will lead to a significant reversal of press freedom in the Maldives and carries the risk of generating a wider effect of fear and self-censorship.”
On July 31, 2022, the president met with members of the MJA to “hear their concerns” about the Evidence Act and “gave the assurance that the government would consider the opinions put forward by the journalists” and amend the law to “clearly define situations involving threats to national security, which may necessitate revealing journalistic sources.”