Human Rights Committee considers initial report of the Maldives

Human Rights Committee
13 July 2012

The Human Rights Committee has concluded its consideration of the initial report of the Maldives on its implementation of the provisions of the International Covenant on Civil and Political Rights.

Introducing the report, Mohamed Jameel Ahmed, Minister of Home Affairs of the Maldives, said that the political tensions following the resignation of the former President Nasheed were still high, despite the steps undertaken by the President Waheed to resolve the issues. In 2008 a new Constitution and the Reform Agenda were adopted and since then the country had held its first-ever free and fair multiparty elections, removed the gender rule which barred women from running for the Presidency, made steps to create a fully independent judiciary and enacted the Anti-Domestic Violence law. President Waheed had established a Commission of National Inquiry to investigate recent events, and had published a Roadmap designed to resolve challenges by establishing a National Unity Government, reform the judiciary and convene elections in 2013. The President had also agreed to hold all-party talks to find solutions through dialogue. Despite those steps, political tensions remained high in the country.

Over the course of three meetings, Committee Members welcomed the Maldives’ commitment towards a strong national human rights institution but expressed the concern that the National Human Rights Commission only had a B status, which made significant difference on the ground. Questions were raised about freedom of expression and assembly, how demonstrations were dispersed, the use of Sharia law, the death penalty and corporal punishment and the link between religion and State, particularly the requirement to be a Muslim in order to have Maldivian nationality. The Committee expressed serious concern about systematic torture and the lack of a mechanism to investigate accusations of torture. Judicial reform, detention facilities, inheritance rights for women and human trafficking were also discussed.

In her closing remarks, Ms. Dunya Maumoon, Minister of State for Foreign Affairs of the Maldives, said the Maldives looked forward to learning from other Muslim nations about progressive methods of guaranteeing and protecting human rights. Priority issues for the Maldives included expediting crucial human rights legislation especially on gender equality, refocusing efforts to combating human trafficking and reforming the Judicial Service Commission. The current levels of political tension, polarization and bitterness in the small community were regrettable and the delegation hoped that the country would overcome that and continue to build its young Muslim democracy.

Zonke Zanele Majodina, Committee Chairperson, in preliminary closing observations, said the Committee was still concerned about allegations of systematic torture and also allegations of systematic targeting of and assaults on journalists covering anti-Government protests. Judicial reform was crucial in the construction of a democratic State. The Committee hoped that the Maldives was serious about achieving better compliance with the provisions of the Covenant and thus guaranteeing human rights for all.

The delegation of the Maldives included representatives of the Ministry of Home Affairs, Ministry of Foreign Affairs and the Permanent Mission of Maldives to the United Nations Office at Geneva.

In a meeting on Working Methods held at 5 p.m. on 12 July the Committee continued its discussion on its draft Preliminary Statement on the report of the High Commissioner on Strengthening the United Nations Treaty Bodies System. In the discussion Committee Members welcomed the issue of friendly settlements agreed it must be made clear that the Committee could not play an active role in friendly settlements or between parties. The Committee then adopted its draft Preliminary Statement and also agreed that Michael O’Flaherty, its Vice-Chairperson, would represent it at the consultation meeting on treaty body strengthening in New York from 16 to 18 July 2012.

The next public meeting of the Committee will be at 10 a.m. on Monday, 16th July, when the Committee will meet with the Expert Mechanism on the Rights of Indigenous Peoples.

Report

The initial report of the Maldives can be read here: (CCPR/C/MDV/1).

Presentation of the Report

MOHAMED JAMEEL AHMED, Minister of Home Affairs of the Maldives, said that since the adoption of the new Constitution and the 2008 Reform Agenda the Maldives had taken important steps, such as holding its first-ever free and fair multi-party elections, removal of the gender rule which barred women from running for the Presidency, steps to create a fully independent judiciary and enactment of the Anti-Domestic Violence law. It was unfortunate that a few pieces of legislation foreseen in the Reform Agenda remained at the drafting and negotiation stage. A further challenge was that the institutional capacity of the wide range of new independent oversight bodies had not kept pace with societal changes and that the rapid nature of the democratic transition had left many such bodies struggling to keep up and deliver on their mandates. Already 2012 had seen significant changes in the Maldives which had clear implications for the rights protected under the Covenant. There was disagreement in the country about the exact nature and sequence of events that had lead to resignation of the former President Nasheed and questioning of the legitimacy of the current administration had perpetuated political tensions in the country. In order to resolve those issues President Waheed established a Commission of National Inquiry to investigate relevant events. The President had also published a Roadmap designed to resolve the challenges by establishing a National Unity Government, reform the judiciary and convene elections in 2013, and agreed to hold all-party talks to find solutions through dialogue. Despite those steps, political tensions remained high in the country.

The Maldives acceded to the International Covenant on Civil and Political Rights and its First Optional Protocol in 2006 and adopted its new Constitution in 2008, which by international standards was exemplary in the area of human rights safeguards. All international legal instruments must be incorporated into national legislation and be supported by separate domestic legislation. In 2008 the Government drafted a new Anti-Terrorism Bill which was under review by the Attorney General, while the draft Penal Code had been held in the People’s Majlis for several years. Gender equality issues had been elevated to ministerial level and a new Ministry of Gender, Family and Human Rights had been created, which was also responsible for equality and non-discrimination issues for all vulnerable population groups. The National Preventative Mechanism against Torture had been established and all prisons now met minimum standards. The Prison and Parole Bill, expected to be tabled shortly, was seen as a vital tool in improving the situation in jails and was expected to modernize and rationalize the prison system, placing higher emphasis on rehabilitation. The right to freedom of assembly was enshrined in the law and in recent years there had been an increasing number of demonstrations on a wide range of issues; the challenge was now responsible exercise of those rights.

IRUTHISHAM ADAM, Permanent Representative of the Maldives to the United Nations Office at Geneva, presented a summary of the replies of the Maldives to the Committee’s list of issues in connection with the initial report. The National Human Rights Commission had been established in accordance with the Paris Principles and was appropriately staffed and resourced. Anti-Terrorism legislation had been drafted to bring national legislation closely in line with the obligations under international human rights law. In July 2010, legislation had been drafted to protect the rights of persons with disabilities and a whole series of measures had been undertaken to improve gender equality including development of new legislation in line with the Convention on the Elimination of Discrimination against Women and improvement of participation of women in public and political life. Women continued to face de facto discrimination and gender stereotypes continued to pose significant challenges to gender equality. The Government was determined to address violence against women, which was a key challenge, and also impunity for perpetrators.

Questions by Experts

MICHAEL O’FLAHERTY, Committee Rapporteur for the Report of the Maldives, welcomed the Maldives’ commitment towards establishing a strong national human rights institution but expressed the concern that its National Human Rights Commission only had a B status, which made a significant difference on the ground. The Commission needed to expand its mandate in support of all fundamental rights and freedoms, and it must be ensured that non-Muslims could be appointed Commissioners. The Committee was concerned about the level of the Convention’s incorporation in the Constitution. Furthermore, what efforts had been made to promote the use of treaties, including the Covenant, in courts and in judiciary?

The Committee was concerned that children as young as seven years old could be subjected to the death penalty and urged the Maldives to abolish it. There was a very slow rate of implementation of the provisions of the Convention on the Elimination of Discrimination against Women: negative gender stereotypes posed challenges to gender equality, particularly in the participation of women in public life. Furthermore, would non-discrimination based on sexual orientation be included in the new legislation? The principle of non-discrimination was part of public international law and the Committee was concerned that while a woman in Maldives could not marry a foreigner who was not a Muslim, the same provision did not apply to men. How did the State implement its Universal Periodic Review recommendations and the concluding observations by the Committee on Elimination of Racial Discrimination? The Rapporteur encouraged the State Party to apply the standard reporting model one for the next report.

Committee Experts asked the delegation how the Maldives reconciled the tenets of Islam enshrined in the Constitution with the total universality of the rules of the Covenant. The challenge of reconciliation of the provisions of the Covenant with the provisions of Islam, common to all Muslim countries, were recognized, and an Expert invited the Maldives to do its utmost to adopt the modernist outlook of Islam that went as far as it could in universally recognizing human rights. Did the criminal code allow for the application of Islamic sanctions such as flogging or stoning and if so, to what extent, for which offences and by whom?

The Maldives was an Islamic state and applied Sharia law; could the delegation comment on the provisions for witnesses in cases of rape and if inter-marital rape was recognized? What sentences were handed down for offences of domestic violence, an Expert asked? Was corporal punishment prohibited in schools by a law? What crimes were punished by flogging? An Expert noted that the polarization of the country was such that maybe a preparation of the society was needed to avoid negative reactions and preserve public order.

Was political rivalry the reason for which the enactment of the Anti-Terrorism Act was not moving forward after four years of drafting? The Committee had been alerted to the fact that incidents of torture seemed to be systematic and that there was no mechanism to address them, not even through the National Human Rights Commission. It seemed that number of cases of torture referred for prosecution was extremely low.

Response by the Delegation

Human rights enshrined in the Constitution of the Maldives were broadly framed, and Islamic human rights were streamlined within the common universality of human rights, with very minor exceptions. That academic debate continued, but the general view of the Islamic jurists was that Islamic human rights had common characteristics with universal human rights. The Bill of Rights of the Maldives had been drafted with the assistance of eleven experts from all over the world; it gave very broad human rights and enshrined them in the Constitution. The Government expected that further expansion of those human rights would follow the development of the society and in that regard the Maldives would be guided by future Muslim jurisprudence on the issues. The Maldives was a homogenous society that spoke one language, was of one race and one religion.

The status of the Human Rights Commission of the Maldives was a subject of a long standing debate; there was an interesting constitutionality of the matter according to which all Maldivians were Muslims. Removing that condition from the statute of the Commission would not resolve the issue. Compensation for victims needed to be resolved between victims and the independent judiciary of the country: redress should be sought through judicial process.

Concerning the death penalty, the status quo of the issue remained. Society had recently been gripped by a crime wave which worried everyone. The country was struggling to agree how best to address the surge of crime; that was the background against which the discussion on the death penalty re-occurred. There was no discussion about it at Government level but the issue was talked about within society itself.

On the question of inheritance, the Maldives was struggling with the same issues as other Muslim societies. It was important to note that when it came to inheritance of land – and land was precious in a country which had more water than land – there was no discrimination between men and women.

Progress in gender equality had been rather slow, but women in the Maldives were active in all areas of life. The Government had accorded priority to improving women’s participation in public and private life, as witnessed by number of women in public office and Parliament. The new Government of National Unity had made a particular effort in including women in the Cabinet, which now had three female cabinet members. In addition, a new Ministry of Gender had been established, and a series of special measures had been put in place to improve the economic situation of women. It was understood that legislation alone was not sufficient to achieve progress, and the Maldives hoped that more could be done in awareness raising and training.

Turning to the reservation to Article 18 of the Covenant, concerning freedom of religion, which the Maldives would maintain, the delegation quoted the United Nations Special Rapporteur who had stated that being a Maldivian and being a Muslim were inseparable. The Government needed to ensure that its laws and practices were designed to protect the religion and not endanger others, such as foreign workers. Nationality was linked to religion in the Maldives; no one could be deprived of nationality and those who wished to obtain Maldivian nationality needed to convert to Islam.

Islamic punishments of amputations and stoning to death existed, even though they had never been carried out in modern history, which was evidence of the progressive thinking of the society. The only form of punishment retained, in addition to the death penalty on which there was a moratorium, was flogging. Corporal punishment of children was prohibited by law and was not practiced. Exceptional cases that occurred were appropriately addressed.

Responding to the comment on the format of its report, the delegation noted that the Maldives was a small island developing State with small population and limited capacity to fulfil its treaty reporting obligations. Following the transfer of power, there was a lot of pressure on the Maldives to hold elections. The election date, now scheduled for 2013, would not be changed before the findings of the Independent Commission of National Inquiry were released in August 2012, unless the parties would agree otherwise.

It was not right to say there was systematic torture in the Maldives. The very reason for the very progressive Constitution and legislation was to avoid repetition of historical incidents, and to help the Maldives live as democratic and Islamic society. The current Constitution provided various safeguards against torture and cruelty, a very broad mechanism existed in the judicial system and any accusations of torture could be examined though the office of the independent prosecutor and through the National Human Rights Commission.

Questions by Experts

In a series of follow up questions and comments, Experts discussed the implications of the religious nature of the Maldives on its legal framework. They also raised the inequalities between a citizen and non-citizen in protection of their human rights. There was clear incompatibility concerning the constitutional provisions of the freedom of religion and the provisions in the Constitution.

How was knowledge of the Covenant promoted among the judiciary, an Expert asked? In the absence of direct applicability of international treaties, was there a body that could reconcile their elements with Islam?

Existing mechanisms for the protection of torture were not enough and the Committee advised the Government to establish a Commission to look into accusations of torture, and thus put the issue to rest and so avoid its politicization.

Studies showed that the death penalty was not an effective deterrent to crime and the Committee encouraged the Maldives to abolish it. A mandatory death penalty was incompatible with the Covenant. What was the exact nature of the moratorium and how did it work; were people still sentenced to death and what would happen if the moratorium was lifted?

The Committee expressed concern about the Maldives’ reservation to Article 18 of the Covenant, which was not a permissible reservation as described by the Committee’s General Comments.

Response by Delegation

The delegation noted the suggestion of the Committee to establish a Commission to investigate accusations of torture and said that the political situation in the country made it extremely hard to establish any independent body. The Maldives needed to stop pointing fingers and looking backwards, and start moving forward. There were several pieces of legislation currently stuck in Parliament, including the Penal Code and the draft Anti-Terrorism Act. The fact that they were still in the Parliament was largely a political issue. The Government was committed to pushing the legislation through, but it was not an easy process due to the existence of many parties in the current coalition Government. The Parliament was trying to introduce several pieces of legislation to implement the provisions of the progressive 2008 Constitution. For example, the country still did not have a proper Criminal and Civil Procedure Code, or a proper Evidence Code.

The moratorium on death penalty was unofficial. The death penalty was a highly sensitive issue and it was well understood that it did not solve the problem of high crime, which in the Maldives was linked to youth and drugs. There was only one court system in the Maldives which had the authority to discuss both civil and Sharia matters.

Concerning the membership of the National Human Rights Commission, the delegation noted that it was defined by the law and that only Muslims could be its members; non-Muslims were not a permanent part of the society as they were mainly temporary foreign workers and tourists. Islam was the official religion of the State and nationality was linked to the religion. That was why the reservation on Article 18 had been entered.

Maldivians were Sunni Muslims belonging to only one sect and that was why the society was considered homogenous. Islam was the main source of all laws in the country, which was why flogging was retained as a punishment for offences, and applied equally applied to men and women.

Questions from Experts

People were held in police custody beyond the “24 hours rule”, an Expert noted. He welcomed the Evidence Bill tabled in Parliament and asked about cases in which courts accepted other evidence apart from confessions. Could the delegation provide more information on the juvenile detention facility it had previously mentioned?

Prison conditions, improvements in prison conditions and the rights-based prisoner management, were raised, and an Expert asked what provisions were in the Prison and Parole Bill and what was the expected timeline for its adoption? What was being done to reform the Judicial Service Commission and ensure that the appropriate amalgam of skills was present on the bench?

There were no women in higher service in courts at the moment; what was being done to ensure their participation? Could the delegation provide further information about the application of Article 20 of the Covenant, which defined the obligation of States to prohibit various forms of incitement to hate, and explain how it dealt with recent incidents of religious hatred?

Human trafficking was a serious matter. The June 2012 report of the National Human Rights Commission report raised concern about the issue and noted that no action had been taken on the 2009 recommendations. There was a piece of legislation in the drafting stage: when would that be dealt with by the Parliament?
Some 30,000 undocumented migrant workers existed in the country and that called for a serious attention to the issue.

The delegation was also asked to explain how demonstrations were dispersed and whether the underlying tenet of Islam was a restriction to the freedom of thought and freedom of expression. Could further information be provided about how many political parties there were in the Maldives and how a political party was established?

The delegation was asked to comment on the family situation of a Maldivian man who married non-Muslim women in the light of the fact that non-Muslims could not become citizens of the country.

Response by Delegation

The police of the Maldives would be given all powers necessary to exercise its functions to safeguard people and their property and to investigate crimes in accordance with the Constitution, a delegate clarified. The unfortunate incidents referred to had indeed taken place before the current Government came into power.

No one could be held in custody longer than 24 hours before being presented to a judge, who then decided how long a person could be held before being charged. Detainees had the right to a speedy trial and prosecution; however in practice that right still needed to be implemented. Implementation of that provision was delayed because the criminal justice system had been overhauled and because it was under-resourced. It was hoped that the system would soon become functional and that people would not be held in custody for longer than 24 hours before being charged.

The Maldives had moved away from a confession-based legal system to an evidence-based system and forensic evidence was now accepted in courts. The separation of prisoners was based on the nature of their crime. Male and female prisoners had been detained in separate facilities for a long time now. Not much had been invested in improving prison conditions so far. The current Government recognized that prisons were overcrowded and had commissioned the renovation of existing facilities and the adding of two blocks in a major prison facility in the country.

The Maldives was struggling to cope with different dimensions of the problem of human trafficking. It had worked closely with international agencies to find answers and recognized that it was being watched by the world. A bill had been drafted to address the problem, but some considered it was too basic in nature. With the help of Australia a new bill was currently being drafted and would be tabled in Parliament soon. The Government had extended an amnesty to all who stayed in the country beyond the legally allowed period; all preparations had been done to send illegal immigrants back to their countries. Non-Muslim spouses of Maldives male citizens enjoyed all rights except the right to citizenship and were permitted to reside in the country and be with their families.

The Government fully supported the rights to freedom of expression and freedom of media, which were guaranteed by the Constitution. Attacks on the media outlets had occurred during the reign of the previous Government, which also tried to censor the free media. The current Government had moved forward in granting freedom to State media and had relinquished State control over it. The Constitution clearly provided the right to freedom of assembly. During the last Government, there had been forceful suppressions of demonstrations, which was not the case with the current Government.

The Judiciary had been fully independent since the adoption of the new Constitution in 2008. There had been discussions in the country on how best to keep the Judicial Service Commission independent and functioning effectively. Unfortunately, not much had been done to implement the recommendations by the International Commission of Jurists for the reform and strengthening of the judicial system.

The Government strongly condemned any incitement to religious hatred and recalled that Islam promoted tolerance and respect for all religions. The politicization of the use of religion was a concern and was a particular issue in the polarization of the small Maldivian community.

The Government strongly believed in freedom of assembly and association, and peaceful demonstrations. It was to be noted that the ongoing demonstrations were far from being peaceful and there was a need to come to an understanding about what happened when rights of others were infringed upon.

Questions by Experts

In follow-up questions Experts asked for detail on the implementation of the Human Trafficking Action Plan and the content of the draft bill on anti-trafficking. Were there any guarantees in the existing legal order that population relocations were voluntary and not forced and that affected populations were adequately consulted?

The status of the 2009 initiative of the Maldives in the Human Rights Council to discuss human rights and climate change was also asked about.

There were reports from civil society organizations working in the Maldives that they and people who had provided information to them, especially who had engaged with the Human Rights Committee, had been threatened and received death threats, an Expert said. Could the delegation please comment on those reports?

Response by Delegation

The Government did not have a policy to forcibly relocate its citizens, a delegate confirmed. Such relocation had not taken place event after the tsunami when delivering assistance had been extremely hard. The Maldives was a small island developing state which needed to consolidate its population for purposes of development and the provision of basic services. There were cases when the populations of small islands decided to relocate and Government had provided them with the necessary support and compensation.

The composition of the Judicial Service Commission was a subject of the long-standing debate and a part of ongoing considerations about the effectiveness of the whole judicial system.

The situation concerning human trafficking was complex and the Government was committed to addressing it as soon as possible and would work on a number of related issues with its international partners.

The Maldives had been very active in the Human Rights Council on issues of climate change and human rights. In 2011 the Council had adopted a resolution on human rights and the environment at its recent June 2012 session had appointed an Independent Expert on human rights and environment.

The delegation reassured the Committee that all measures would be undertaken to address threats and intimidation against civil society organizations, and the National Human Rights Commission, the police and the Parliament would investigate those allegations.

Concluding remarks

DUNYA MAUMOON, Minister of State for Foreign Affairs of the Maldives, thanked the Committee for the frank and open dialogue and said that the delegation had received food for thought on how to implement its obligations under the Covenant. The Islamic debate was an important feature of national identity and the Maldives looked forward to learning from other Muslim nations about progressive manners in guaranteeing and protecting human rights. The Maldives attached the greatest importance to the International Covenant on Civil and Political Rights and looked forward to receiving Committee’s concluding observations which would help in consolidating its young democracy.

The dialogue in the Committee had already helped in identifying some key issues to work on, such as on expediting crucial human rights legislation, especially on gender equality, refocusing efforts to combating human trafficking and reforming the Judicial Service Commission. The Maldives had moved forward in building democracy rapidly and in a relatively peaceful environment. The current levels of political tension, polarization and bitterness in the small community were regrettable and the delegation hoped that the country would overcome that and continue to build its young Muslim democracy.

In her preliminary concluding observations, ZONKE ZANELE MAJODINA, Committee Chairperson, welcomed the presence of the delegation despite the dramatic events in the country earlier this year. It was the Committee’s first dialogue with the Maldives and they had covered a wide range of issues. The Committee had expressed a number of concerns, including the Maldives’ continued reservation to Article 18 which had adverse consequences on a number of groups in the society, and about allegations of actual practices of torture which were systemic and were a serious violation of human rights.

Concerning freedom of expression and freedom of assembly, allegations of systematic targeting of and assaults on journalists covering anti-Government protests continued. The question of judicial reform had taken up considerable time in the dialogue and the Committee hoped that the Government would address that issue as it was crucial in the construction of a democratic State. The Committee hoped that the Maldives was serious about achieving better compliance with the provisions of the Covenant and thus guaranteeing human rights for all.

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