Committee on the Elimination of Racial Discrimination considers report of the Maldives

Committee on the Elimination
of Racial Discrimination

12 August 2011

The Committee on the Elimination of Racial Discrimination has concluded its consideration of the fifth through twelfth periodic reports of the Maldives on its implementation of the provisions of the Convention on the Elimination of Racial Discrimination.

The report of the Maldives was presented by Abdulla Muiz, Attorney General of the Republic of the Maldives. Mr. Muiz said the Maldives valued the review by the Committee as it believed that domesticating the International Convention on the Elimination of Racial Discrimination was of vital importance. The Constitution of the Maldives guaranteed all people the same rights and freedoms and upheld the principles of equality and non-discrimination. At the legislative level, the Maldives currently did not have an Anti-Discrimination Act, but the drafting of such a bill had been earmarked for 2012. Maldivian law did not provide for freedom of religion, although in practice foreigners were allowed to practice religions other than Islam in private. The Maldives faced challenges related to human trafficking and migrant workers. Mr. Muiz asked the Committee to bear in mind that the democratic and legal framework of the Maldives was a work-in-progress.

In preliminary concluding observations, Yong’an Huang, the Committee Expert who served as country Rapporteur for the report of the Maldives, said the discussion had proceeded in a free and frank manner and had provided a constructive dialogue on discrimination in the Maldives and the efforts undertaken to combat it.

During the interactive dialogue, Committee experts raised questions and asked for further information on a range of subjects, including: restrictions on practice of religion, the rights of migrant workers and any discrimination they might face, human trafficking, the lack of anti-discrimination laws in the country, the role of the National Human Rights Commission and the requirement that all members be Muslim, citizenship laws and the stipulation that non-Muslims could not become citizens nor could they openly practice their religion, the discrepancy in secondary school enrolment rates between boys and girls, and the interaction between English common law and Islam in the legal system of the Maldives.

The delegation of the Maldives included representatives of the Attorney General’s Office, the Ministry of Human Resources, Youth and Sport and the Permanent Mission of the Maldives to the United Nations Office at Geneva.

The Committee will present its written observations and recommendations on the fifth through twelfth periodic reports of the Maldives, which were presented in one document, at the end of its session, which concludes on Friday, 2 September.

The next public meeting of the Committee will be Monday, 15 August at 10 a.m. when it will hold an informal meeting with non-governmental organizations regarding the implementation of the Convention in the countries presenting periodic reports during the seventy-ninth session.

Report of the Maldives

The fifth through twelfth reports of the Maldives, which were submitted in one document (CERD/C/MDV/5-12), state that the Maldives acceded to the International Convention on the Elimination of All Forms of Racial Discrimination in 1984. The Government of the Maldives did not accept the competence of the Committee to receive individual complaints under article 14 of the Convention. Through its constructive dialogue with the Committee, the position of the Government had been to deny the existence of racial discrimination in the country as the Maldives has a small homogenous population […] and the people are of the same origin, pursue the same religion (Islam) and speak the same language (Dhivehi). The Government is, however, of the opinion that the significant increase in the number of migrant workers in recent years requires legislative attention.

The domestic law of the Maldives does not define racial discrimination. Nonetheless, the 2008 Constitution of the Republic of the Maldives provides that everyone is entitled to the rights and freedoms included without discrimination of any kind, including race, national origin, colour, sex, age, mental or physical disability, political or other opinion, property, birth or other status, or native island. There is no racial segregation in the Maldives. Therefore, no specific measures to prevent, prohibit and eradicate practices of racial segregation in territories under the jurisdiction of the Maldives have been taken. The Government of the Maldives is pleased to note the absence of incitement to, or acts of, racial discrimination in the Maldives. Racial motives are not considered an aggravating circumstance under domestic penal legislation. There are no cases of racial discrimination, as defined under article 1 of the Convention, in the practice and decisions of courts or other judicial and administrative organs.

In the absence of prejudices leading to racial discrimination in the Maldives, the Government did not take specific steps in terms of education and teaching, and culture and information, to address racial discrimination. However, the report says in the Maldives the teaching of Islam promotes understanding, tolerance and friendship among nations and all groups. The reports set out the issues raised by the Committee in its 1999 concluding observations on the Maldives’ implementation of the Convention with respect to any guarantees of equality and protection against racial discrimination in the 1998 Constitution and further information on the situation of migrant workers and foreigners and, in particular whether they enjoy the protection of the Convention.

Presentation of the Report

ABDULLA MUIZ, Attorney General of the Republic of the Maldives, in presenting the report of the Maldives, said the country had a pro-human rights policy and was party to international human rights conventions with a view to enforcing basic standards nationally. Enormous progress had been achieved in guaranteeing the fundamental freedoms and individual liberties of all within Maldivian society. The Maldives started enforcing a revised comprehensive Constitution three years ago, which ensured a smooth and peaceful transfer of power from a thirty year long dictatorship to the first democratically elected President. The transition reflected a strong and effective partnership that had evolved over the past seven years between the Maldives and the international human rights community. The Maldives valued the review by the Committee as it believed that domesticating the International Convention on the Elimination of Racial Discrimination was of vital importance. Five years ago, the Maldives was heavily criticized for its poor human rights record. It was party to very few human rights conventions and had never received a visit from any Special Rapporteur. Currently, the Maldives was a member for the Human Rights Council, party to nearly all human rights conventions and most optional protocols and had welcomed visits by five Special Procedure mandate holders.

These achievements should not mask the fact that the Maldives continued to face enormous challenges in ensuring that all human rights now protected by law were fully enjoyed in practice. Several factors slowed on-the-ground enforcement, namely: fragile democratic fabric, infant democratic institutions, religious fundamentalism, heavy drug abuse, the vulnerability of the country to environmental threats and most recently, human trafficking. The Maldives‘ record of reporting under the Convention was less than stellar. Previously, the position of the Government had been to deny the existence of racial discrimination. However, the Government was currently of the view that the significant increase in the number of migrant workers in recent years was slowly transforming Maldivian society into a diverse community with increased inter-cultural linkages. Therefore, legislative and other affirmative measures were required to prevent any forms of racial discrimination that could occur. The Constitution of the Republic of the Maldives guaranteed to all persons the same rights and freedoms and upheld the principles of equality and non-discrimination. At the legislative level, the Maldives currently did not have an Anti-Discrimination Act, but the drafting of such a bill had been earmarked for 2012. The right to education was a constitutional guarantee in the Maldives and by policy, the Government enforced compulsory primary education. Non-Maldivian students were enrolled in schools and received the same curriculum.

The National Human Rights Commission was one of the most active national institutions in Asia. The Commission was fully compliant with the Paris Principles with one exception: members of the Commission had to be Muslim. Maldivian law did not provide for freedom of religion, although in practice foreigners were allowed to practice religions other than Islam in private. The Maldives enjoyed a culturally diverse society. Many migrant workers from South Asian and Southeast Asian countries traveled to the Maldives, attracted by comparatively higher wages. The Government introduced an eight-week moratorium on foreign workers in 2009, which was preceded by the Ministry of Human Resources carrying out an expatriate worker registration program. The 2008 Employment Act did not differentiate between locals and foreigners. Chapter 2 of the Act prohibited forced labor and Article 4(a) prohibited discrimination. To protect the vulnerable migrant labor population, the Expatriate Employment Regulation imposed duties on employers, including responsibility for the employee during their stay and other requirements. The Labor Relations Authority resolved wage and labor disputes, visited work sites and enforced labor regulations. There were no laws governing health and safety conditions. The new Labor Law aimed to provide protection for workers from retaliatory dismissal if they attempted to remove themselves from, or eliminate unsafe working conditions. The right to association and the right to strike were now guaranteed under the Maldives’ Constitution.

Turning to detainee rights and prison conditions, the Maldives was one of the original twenty States Parties, and the first Asian country, to the Optional Protocol to the Convention against Torture. International efforts had been translated into real on-the-ground progress. Systematic discrimination against foreigners did not take place in the prison system. While the presence of the expatriate population contributed to the Maldives’ economic progress, their presence created challenges as well. The most tragic was that the Maldives was increasingly becoming a destination for human trafficking. Though the Maldives did not have any laws prohibiting trafficking in persons and no official studies or reports had been conducted, the Government recently outlined a strong policy to prevent the country from becoming a safe haven for traffickers. The Constitution also prohibited forced labor and slavery. A National Counter Human Trafficking Action Plan was concluded in February. Pending its finalization and enactment, existing laws covering sexual offences and child protection would be used to prosecute sex trafficking and child trafficking offences. Mr. Muiz asked the Committee to bear in mind that the democratic and legal framework of the Maldives was a work-in-progress.

Questions Raised by the Rapporteur and Experts

YONG’AN HUANG, the Committee Expert who served as country Rapporteur for the report of the Maldives, said it was important to note that the periodic report of the Maldives was different than that of other State parties. The text of the report itself was quite short, amounting to three pages, but a core document was attached. It was advantageous for the State party to reduce its heavy burden in this way, but it was inconvenient for the Committee to retrieve detailed information from a common core document. The Republic of the Maldives was a small island country, comprised of approximately 1,200 islands. Tourism and fishing were the pillar industries of the island country. Due to the islands’ low elevation and the threat of sea level rise, the Maldives was vulnerable to environmental changes such as global warming. The Maldives had acceded to major international human rights treaties. The new Maldivian government had established a good relationship with United Nations human rights treaty bodies.

The Maldivian Government denied the existence of racial discrimination in its fourth periodic report. Mr. Huang was glad that the State party had taken the recommendation of the Committee and had acknowledged the necessity of legislative measures to guarantee the rights of foreign migrant workers. However, it was still necessary for the State party to take further legislative measures to provide guarantees to protect the rights of foreign migrant works, which made up almost half of the Maldivian labor force. There was still no anti-discrimination legislation currently in the Maldives and thus, Mr. Huang called on the State party to take measures to review its legislation or to enact an anti-discrimination act in line with the Convention on the Elimination of Racial Discrimination. Mr. Huang called for the State party to take concrete measures to strengthen the National Human Rights Commission and to formulate an Education Act to prevent discrimination in education.

The 2008 Constitution included a provision that constituted de facto discrimination against non-Muslims and the State party was urged to make efforts to amend these discriminatory provisions. The Maldives should consider acceding to conventions concerned with the rights of non-citizens and amend relevant regulations to allow non-Muslims to acquire Maldivian citizenship. The State party should update information regarding the protection of the rights of migrant workers and the prevention of discrimination against migrant workers and foreign nationals in prison. Given the increasing number of migrant workers, cases of hostility toward and ill-treatment of these people had been reported in a timely fashion. It was necessary for the State party to enact legislation on prohibition of incitement to national, racial or religious hatred. Necessary and effective measures should be taken to teach and propagate the purposes and principles of major United Nations human rights instruments. There was a lack of disaggregated demographic data on the ethnic composition of the population, which should be added to the next periodic report. Information about measures taken by the State party in eliminating all forms of racial discrimination would also be most welcome.

Following Mr. Huang’s remarks, other Committee Members took the floor. Some Committee Members expressed disappointment about the length and depth of the periodic report. However, the burden of reporting imposed by the international human rights system was acknowledged. The lack of certain legislation on phenomena, such as racial discrimination and human trafficking, made it difficult for the Government to react to situations that could emerge spontaneously. Gaps in legislation could lead to future problems. Migrants and foreign workers made up one-fifth of the population. It would be useful to investigate whether there were tensions between Maldivian citizens and foreign workers. One Committee Member asked for further information about the composition of migrant workers according to gender and country of origin and whether migrant workers and other foreigners could become Maldivian citizens. What kind of equality was available for long-term residents and under what terms and conditions? Committee Members asked for more information about the functioning of the labor market. The Maldives was not party to international conventions on refugees and more information was required on the existence and status of refugees in Maldives.

The legal system was a mix of Islam and English common law. Committee Members asked for more information about the role of English common law, the functioning of the legal system and the application of the two legal approaches. One Committee Member specifically asked whether Sharia law, as it pertained to punishment, was applied in the Maldives. Furthermore, how did the practice of allowing private observance of non-Muslim religions work? Committee Members expressed concern about the requirement that all citizens be Muslim which restricted access to citizenship and public office, and fundamental rights and freedoms. One Committee Member asked how the requirement that all Maldivian citizens be Muslim was in line with the Convention on the Elimination of Racial Discrimination. Restrictions on the rights of migrants and other foreigners to prohibit the practice of religions other than Islam, except in private, were of concern as well. Was any one Maldivian citizen married to an individual practicing a different religion?

Committee members asked about the general status of civil servants and repercussions faced for those who committed acts of discrimination. It was also important to know what policies were carried out to combat human trafficking and the efforts to adopt the Convention on Organized Transnational Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. Committee Members asked for more information about the bill to be drafted against discrimination and its relationship to the Convention on the Elimination of Racial Discrimination. The National Human Rights Commission should be representative of all religions and faiths of a country. Did the Maldives envisage changing the provision that members of the National Human Rights Commission be Muslim? More in-depth analysis of secondary school enrolment, particularly regarding the reduced enrolment of girls versus boys, was necessary.

Response by Delegation

The delegation said that as a small island developing state, the Maldives had capacity constraints and relied on the support of international organizations to respond to the requirements of international human rights mechanisms.

They hoped that it was clear from the state report that the Maldives had made truly enormous progress in the field of human rights over the past few years. A thirty-year old autocracy was replaced by a functioning multi-party democracy based on free and fair elections. Serious human rights violations had been all but eliminated and a wide array of new human rights institutions had been established, with a new constitution that had human rights protection at its heart. One aspect of efforts to improve human rights in the Maldives had been to strengthen engagement with the treaty body system. This included moving to ratify nearly all the core human rights conventions. However, signing these conventions lacked meaning unless the Maldives worked with the treaty bodies to actually implement the obligations contained therein. Part of this effort was the request to the Office of the High Commissioner for Human Rights to help the Maldives prepare a common core document and treaty specific report framework. It was important for all treaty body committees to understand the enormous burden that treaty reporting placed on small states. The Maldives made no apologies for taking the step of preparing a common core document and treaty specific template in cooperation with the Office of the High Commissioner for Human Rights. The Maldives was therefore disappointed by the response of some Committee Members that suggested that the Committee should not have accepted the report. The Maldives believed that the information provided was sufficient.

Turning to the issue of freedom of religion and its associated questions, the Maldives maintained a reservation to article 18 of the International Covenant on Civil and Political Rights on freedom of religion and there were currently no plans to withdraw that reservation. This was a reflection of the deep societal belief that the Maldives always had been and wished to remain a 100 per cent Muslim nation. It was not true that under the new Constitution existing citizens could be arbitrarily deprived of their nationality if they were to stop practicing Islam. The Constitution was very clear on this point: no citizen could be deprived of his or her nationality under any circumstance. The Muslim-only clause under the citizenship article of the Constitution only applied to non-Maldivians wishing to become naturalized. The Constitution Act prescribed the way a foreigner could acquire Maldivian Citizenship and over the years a number of persons had been granted Maldivian citizenship. A high degree of freedom was provided in the Maldives for people to practice other faiths, provided it was done in private and provided that there was no proselytizing. Many citizens were married to a foreigner of another religion. Muslims and non-Muslims lived harmoniously in the Maldives.

The Government had an important role to play in promoting national debate and reflecting on issues surrounding religion and human rights, including freedom of religion and inter-religious dialogue. The Government had a role to play in codifying Sharia law within a modern Maldivian context. The Government was organizing a Modern Sharia Jurisprudence Conference to promote modern interpretations of Sharia law in the State. On the question of refugees, the Maldives did not currently have a system to take on refugees, although it had accepted the recommendation, issued in the Universal Periodic Review process, to adopt the United Nations Convention on Refugees and its related Protocol. The Maldivian legal system evolved extremely slowly and remained very under-developed. The Maldives did not apply a full-fledged English or common law system. There was, nevertheless, a high degree of British influence in the system, particularly in areas such as commercial law. Similarly, Sharia law dominated areas such as family law but this was adapted to the modern judicial system. A lot of effort had been made to deal with some of issues related to the ad hoc mixture of the legal systems but much needed to be done to eliminate inconsistencies.

The delegation said that currently, an umbrella anti-discrimination act did not exist in the Maldives. They wanted to close this legislative gap and would draft such a bill next year. The provisions in the constitution and some laws that public positions could only be held by Muslims stemmed from the fact that religion was intricately linked to every aspect of Maldivian life. These stipulations were carried from preceding legislation and ended up on the constitution drafters’ table. Since religion was the Maldivian way of life, it would be extremely difficult to remove these stipulations until public opinion on the issues changed. There had been increased reports of mistreatment of migrant workers by their employers. Thousands of illegal workers had been registered and the existing systems were being modernized. High on the agenda was acceding to the eight core Conventions of the International Labor Organization. The Maldives had teamed up with the International Organization for Migration in the fight against human trafficking and anti-trafficking legislation would be finalized later in the year. The Maldives was aware and concerned about the exploitation of women by traffickers and had started to extend support to victims. The Government was in the process of setting up a national database that would include statistics pertaining to migrants.

Turning to education in the country, the delegation noted that the functional literacy rate in the Maldives was over 98 per cent. Most of the schools were state-owned and funded. However, there was a drop in the ratio for girls’ enrolment in secondary school. In many instances, parents curtailed education for girls after seventh grade by not allowing them to leave their home island for another island with a secondary school. Another important actor that contributed to the drop in girl-to-boy ratio was the influence of radical and extremist views creeping into society. However, the Government, together with non-governmental organizations, was undertaking awareness campaigns to change this. The Human Rights Commission was not a statutory body with its own mandate and the members were not appointed by the President on his whim and fancy, but according to the act that established the Commission. Individual complaints could be lodged at the Commission. The Executive and the Human Rights Commission enjoyed a good working relationship. Regarding climate change, the President had said that climate change was the highest priority for the government and the government had played a high profile role in advocating for action against climate change. The Maldives aimed for climate change neutrality by 2020.

Further Questions Posed by Experts

Committee Members recognized that the Maldives faced capacity constraints, although a report longer than three pages would have been appreciated. It was important to have dialogue, even without an extensive periodic report or without a core document, as was the case in Kenya. The recent changes to the constitution and the human rights context significantly deepened the respect for human rights. Adopting laws on discrimination and on trafficking were of vital importance in the Maldives. Committee Members hoped the delegation would prepare a report on the Committee and its views to submit to the Government. One Committee Member requested more information about the labor market in the Maldives, particularly if there was discrimination against local workers based on their ethnicity. Were local and foreign workers considered on an equal basis? Did the State tolerate hiring requirements for specifically blonde or fair-haired workers?

Given the broad range of Sharia law, Committee Members asked what type of Sharia interpretation was utilized in the Maldives. For example, in the case of murder, were negotiations with the family of the victim for blood money possible? It was true that it would be difficult to change the fundamental laws of the Maldives. Committee Members asked for further information about areas in which Sharia or other forms of law dominated. Particularly, one Committee Member asked how penal or criminal law was applied. There was also a question about how religious extremism manifested itself and whether it influenced a considerable part of the population, for example did it lead to attacks on individuals who were not Muslims. Could individuals who were not Muslim be excluded from taking public offices, such as judgeships?

Response by Delegation

The Delegation said the Maldives was a very moderate Islamic state, as it had been ruled under British law until 1968. Tourism was the main source of livelihood for Maldivians and thus tolerance was essential. Maldivians had been living harmoniously with peoples of all religions and nationalities. Efforts were being taken to codify Maldivian law, including the laws based on Sharia law, in accordance with international law. Sharia law was applicable mostly to family matters and inheritance matters, whereas most other laws were based on Anglo-Saxon and other codified forms of law. The Maldives encouraged tolerance of belief and opinion, and encouraged discussion on all topics and themes. Regarding criminal law, offences by foreigners would not be judged under Sharia law. The requirement that judges be Muslim, unlike members of the Human Rights Commission and other statutory bodies, was relaxed, as judges did not have to be Maldivian. Laws should not contradict principles of Islam and thus it was reasonable in the Maldivian context that judges be Muslims. Given that this required changes to the Constitution, which was not easy, the delegation did not envisage the requirement being changed any time soon.

The values of human rights were prominent in the Maldives. The State enjoyed relations with both Palestine and Israel, and the Foreign Minister had recently visited both Palestine and Israel. While it advocated strongly on the part of the Palestinian people, the Maldives also strongly supported the respect for people’s rights and values. Violations of human rights should not be tolerated anywhere in the world. Although the Maldives followed Sharia law, it was guided by its fundamental rights and values.

The Maldives was composed of 300,000 people and had 100,000 expatriates working within its borders. Maldivians enjoyed all freedoms and rights in the constitution, as did foreign workers. Some of the rights and privileges enjoyed by foreign workers were even better that those enjoyed by Maldivians themselves. Regulations mandated that employers provid accommodation and food for foreign workers, which did not apply to local workers. Foreign workers were not discriminated against in any way in the Maldives.

Political change had developed rapidly in the Maldives. The first political party was formed in 2005. In a very short span of time, elections were held and a new constitution and new international conventions adopted. This meant the Maldives was still working to adhere to its international obligations. With regard to religious extremism, some graduates of universities abroad, particularly in the Middle East, expressed extreme views. For example, the prohibition of alcohol in the capital had been proposed, but the Government had no intention of adopting such a prohibition or other suggestions made by religious extremists.

Preliminary Concluding Observations

YONG’AN HUANG, the Committee Expert who served as country Rapporteur for the report of the Maldives, said the discussion had proceeded in a free and frank manner, and it had been a constructive dialogue. The relationship between the Convention on the Elimination of Racial Discrimination and the State party was not one of confrontation but of cooperation. The dialogue between the two sides provided a review of the implementation of the Convention and investigated problems associated with its implementation. This helped the State party to analyze the source of such problems and take action to implement to Convention. The Committee was not a court or judge of human rights but simply a review body that provided suggestions in accordance with the Convention. Progress in the improvement and protection of human rights on the part of the State party had been confirmed. Good questions and suggestions had been raised. Mr. Huang hoped the next report of the Maldives would adhere to the guidelines of the Convention.

ABDULLA MUIZ, Attorney General of the Republic of the Maldives, said it had been a pleasure for the delegation to appear before the Committee. The Attorney General said the exercise was tougher than even appearing before the parliament of the Maldives. It offered the opportunity to have a frank and constructive dialogue but also offered a number of ideas to bring back to the Maldives, and he hoped this would translate into real change on the ground. The delegation was committed to bringing the conclusions and recommendations of the Committee back to the Government for discussion and implementation.

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