high court – Page 13 – Minivan News

High Court rejects JP request for order to stop announcement of official results

The High Court has rejected the Jumhoree Party (JP)’s request for an injunction seeking the halting of the Elections Commission (EC)’s announcing of the official results for last Saturday’s presidential election.

The High Court ruling (Dhivehi) stated that there were no grounds to grant the stay order based both on the reasons argued in the case filed by the JP as well as the regulations and guidelines for issuing injunctions. The three judges who made the ruling were Judge Abdul Gani Mohamed, Judge Ali Sameer and Judge Abdul Raoof Ibrahim.

The JP request was made in a case filed by the party seeking a court order to compel the EC to release the voters list from Saturday’s election. Election regulations require a court order before the registry can be released.

The provisional results of the election showed Maldivian Democratic Party (MDP) candidate former President Mohamed Nasheed finishing the race on top with 45.45 percent of the popular vote or 95,224 votes. The Progressive Party of Maldives (PPM) candidate MP Abdulla Yameen came second with 53,099 votes – 42,125 votes less than the MDP – while the JP led by resort tycoon Gasim Ibrahim secured 50,422 votes to finish the race in third position. Incumbent President Mohamed Waheed Hassan finished the race at the bottom with 10,750 votes – 5.13 percent of the popular vote.

As former President Nasheed fell short of the 50 percent plus one vote required for a first round victory, the MDP candidate will face the runner up Abdulla Yameen in a second round run-off on September 28.

JP complaints

Shortly before the provisional results were announced in the early hours of September 8, the JP challenged the results, later contending that the vote had been rigged in favour of both the PPM and MDP.

The party filed a case at the High Court on Tuesday (September 10) requesting an order for the EC to hand over copies of voter lists and result sheet of all ballot boxes.

The High Court however initially refused to accept the case citing incomplete documentation. The JP subsequently refiled the case with completed paperwork yesterday (September 11).

A member of the JP’s legal team, Mohamed Haleem, said the party had acquired ample evidence to prove the alleged discrepancies and irregularities, which included expatriates and dead people appearing on the voters list, use of multiple designs of ballot papers and double voting.

EC Chair Fuwad Thowfeek told Minivan News on Tuesday that the JP’s claims were “baseless and unfounded”.

“The allegations by the Jumhoree Party are wasting our time actually. They don’t understand democracy or how to accept defeat, it’s a very unfortunate thing,” Thowfeek told Minivan News. “People who cannot accept defeat should not face an election,”

“Gasim wants to tell people that he has more than 50,000 supporters, but the 50,422 [who voted for him] are his real support, he should be grateful to the people who voted for him. There is no way he’s going to find any more, even if a recount is conducted,” Thowfeek said.

Speaking at the party’s main meeting hall in Maafanu Kunooz last night, Gasim said the JP has written to the EC requesting a recount of all 470 ballot boxes in the presence of observers as provided for in the election laws.

“We have doubts to a very high degree. Vote [ballot papers] were printed. Dead people were doubled [on the voters registry],” he said.

Gasim also expressed confidence of obtaining a favourable ruling from the High Court or upon appeal at the Supreme Court and praised the judiciary as “the life of the country.”

“We know judges will bring justice for us,” he said.

Despite the allegations of wrongdoing, international observers, including those from the EU, Commonwealth, UK, US and India, praised the conduct of Saturday’s presidential election, describing them as “transparent and competitive”.

Local NGO Transparency Maldives (TM) – who ran the most comprehensive observation operation on election day – announced that none of the incidents reported on September 7 would have a “material impact on the outcome of the election”.

TM said in a statement that all candidates “were well-represented during the counting, making the process transparent and adding to its credibility.”

“Gasim Ibrahim was represented at 73.7 percent of polling stations during the vote count. Mohamed Waheed Hassan Manik was represented at 29.6 percent of polling stations during the vote count. Abdulla Yameen was represented at 74.2 percent of polling stations during the vote count. Mohamed Nasheed was represented at 91.5 percent of polling stations during the vote count,” the TM statement stated.

“While only 0.22 percent of ballot papers were disputed by the candidate/party observers during counting, in the vast majority of polling stations (85.5 percent), the counting concluded without any controversy.”

The EC has since invited applications for voter re-registration and revealed that 500 new voters will be eligible to cast their ballots on September 28.

Third parties

The opposition MDP meanwhile joined the JP’s High Court case today – which has been scheduled to begin on Sunday at 1:20pm – as a third party while the PPM has told local media that the party was also considering joining the case.

MDP’s Spokesperson Imthiyaz Fahmy confirmed to Minivan News that the party had decided to join JP’s case as it involved the legitimate interests of the party and presidential candidate, former President Nasheed.

The PPM meanwhile said that its election observers had also noted irregularities during the vote.

Vice presidential candidate of PPM, Dr Mohamed Jameel Ahmed, told local newspaper Haveeru that the basis of JP’s case had been derived from a previous Supreme Court case lodged by member of PPM’s Appeal Committee Ahmed Zaneen Adam.

“[The case] involves issues first highlighted by the PPM [in the Supreme Court case]. It is very important to verify the authenticity of the allegations [made by JP]. We hope that the court would make a quick and prompt decision,” Jameel told Haveeru.

Among the inconsistencies observed by the PPM’s election observers, Jameel claimed, included double voting and the election officials at polling stations being biased and prejudiced towards a “certain candidate” while announcing the election results.

The former Home Minister also raised concern over the “aggressive responses” given in the media by the members of EC regarding the issues. Jameel argued that EC members should not be personal in responding to complaints filed by candidates and other stakeholders regarding the election.

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EC Chair dismisses JP allegations of vote rigging: “A small child would not believe what they are talking about”

The Elections Commission has dismissed as “baseless” the Jumhoree Party’s (JP’s) allegations of vote rigging, pointing to the commission’s transparency, ongoing complaints investigations, and praise from a broad spectrum of election observers.

While local and international election observers have praised the conduct of Saturday’s (September 7) presidential elections, JP presidential candidate Gasim Ibrahim, who was placed third in Saturday’s vote with 24 percent, has contested the results and accused the EC of tampering with the outcome.

Hours ahead of a delayed EC briefing to unveil the provisional election results, which tool place in the early morning hours of Sunday (September 8), a small group of JP supporters demonstrated outside the Dharubaruge convention centre alleging a 10,000 vote discrepancy.

On Monday (September 9), Gasim claimed 20,000 unlawful votes had been cast, while the former deputy leader of the Progressive Party of Maldives (PPM) Umar Naseer – who backed Gasim in the poll – accused the EC of giving Maldivian Democratic Party (MDP) members 30,000 additional ballot papers to tamper with the outcome of the election.

“The allegations by the Jumhoree Party are wasting our time actually. They don’t understand democracy or how to accept defeat, it’s a very unfortunate thing,” EC Chair Fuwad Thowfeek told Minivan News yesterday (September 10).

“People who cannot accept defeat should not face an election,” he continued. “It’s a contest so there’s a chance they will win or lose. In this case there were four contestants and only two could advance to the second round. Gasim Ibrahim doesn’t understand [this] and his followers are making a fool out of him,” he contended.

Thowfeek expressed confidence that Maldivians would understand that the JP’s allegations are “baseless”.

“They are just making all these false and fake allegations, there is no truth in anything they are saying and the public will know it is all lies,” stated Thowfeek. “No person who knows the [Elections Commission] system will believe any part. [Particularly] people who know me professionally and personally. A small child would not believe what they are talking about.”

The EC Chair explained that he has been in contact with Gasim and the JP and addressed their concerns.

“Gasim Ibrahim called me Monday (September 9) and I explained all the details to him. I also spoke very clearly to [MP Ahmed] Ilham when he came to meet on September 7,” said Thowfeek.

“Everything has been so transparent and we have readily provided all the results and what the JP has asked for, including soft copies [of results sheets from all 470 ballot boxes],” he noted.

“The only thing we cannot by law release is the list of who did and did not vote. The list contains confidential personal information – full names, dates of birth, ID card numbers – and can only be released with a court order,” he added.

Yesterday the High Court rejected a case filed by the JP seeking the release of the voters list and result sheets from the EC.

Speaking at a JP rally last night, Umar Naseer reportedly said the case would be resubmitted to the High Court today.

He said that it was dismissed due to “technical issues” as the court required additional information to be cleared from the EC before it could hear the case.

The JP is seeking the voters list to identify the number of allegedly “fraudulent votes” and determine if it could change the outcome of the election, Naseer said.

“We are certain that 95,000 people in the Maldives will not vote for Nasheed,” he was quoted as saying by newspaper Haveeru.

The JP coalition has so far learned that 1,188 people had been registered in homes without the knowledge of the owner while the names of 173 voters were repeated or doubled on the voters list, and the names of 569 deceased were also on the gazetted registry, Naseer claimed.

Thowfeek meanwhile appealed for international and domestic scrutiny of the EC to ensure transparency and public confidence.

“The EC would appreciate if international and local observers continued to keep a close watch on EC and voting activities to see how everything proceeds,” Thowfeek said.

He believes their monitoring will continue to demonstrate the transparent work of the EC because “after the second round result we don’t know what type of [inaccurate] talk will come out.”

“We met with international observers on September 8th and they were very pleased about what they had seen and noted [of the election process],” said Thowfeek. “There were many observers from various countries – the Commonwealth, EU, US, UK, Australia, Japan, Thailand, Malaysia, and India – and everybody praised the work we have done.”

Complaints investigation proceeding

The EC’s complaints investigation process is ongoing and will be completed “as soon as possible, probably by the end of this week,” Thowfeek said.

“The Complaints Bureau is attending to all complaints, and replies have [already] been sent to most of the complainants,” he said.

“There are some cases that may [be] prolonged because [identifying and speaking with] additional witness takes time, but these issues will be addressed before the next round [of the presidential election process],” he continued.

The discrepancies which the JP have alleged include: double voting, votes cast in the name of people who died prior to the election, inaccurate voter registry, lack of transparency during ballot counting, election officials being biased and aligning themselves towards MDP candidate Mohamed Nasheed and Progressive Party of the Maldives (PPM) candidate Abdulla Yameen.

“With [election] officials from different sources [working] in front of [election] observers, there was no way the type of fraud [JP is alleging] could be made,” said Thowfeek.

“Polling station officials were not all from the EC. We hired various officers from public sector organisations, as well as young people looking for work,” he noted.

“Every ballot box had a combination of all types of individuals, selected at random, and a balance was kept between females and males, young and old,” he explained. “Many met for the first time during training or [polling station] duty. All the people belonging to [and responsible for] each ballot box were not trained together [as a group].”

Thowfeek also addressed the voter registry concerns raised by the JP – and previously raised by the PPM prior to elections.

“The voter’s list was published two weeks before voting and the lists were [also] sent to all ballot box locations in addition to EC officials, presidential candidate representatives, observers from each political party,” said Thowfeek. “Anyone who has this [list] will know that they will not be able to show a single person who voted under a false name.”

He explained that the EC obtained the voter registration lists from island council offices as well as the Male’ municipality office. This data was compiled and the lists cross-checked with the Department of National Registration to verify its accuracy.

Thowfeek also emphasised that many individuals are not aware or are misunderstanding the Male’ Dhaftharu – a special registry for people who are Male’ residents, but are from other islands – registration process.

“In the past people were placed on the Dhaftharu with the municipal council [listed as their residence], but this time they put the places where they live,” said Thowfeek.

“7,000 people were registered on the Dhaftharu using the places they were residing at the time. Some people asked why add these names to a particular house [for voter registration] because these people were [previously] registered under the municipal list,” he continued.

“These individuals are originally from different islands, but if they live in Male’ over five years they are eligible for Male’ residency, however many don’t own a home in Male’, they rent or stay with relatives,” he noted.

“They are Maldivian citizens [from the islands] residing in Male’ but they don’t have a permanent residence – they have the right to vote,” he declared.

“In front of all those people – as well as election monitors and observers – there is no way anyone can do any sort of mischief,” he concluded.

During the September 8 early morning press conference, Vice Chair Fayaz addressed vote counting issues that resulted in police intervention at Majeedia and Amadiya Schools in Male’.

“One of the very important steps we will be taking is to replace such heads of polling stations. In the next round of elections we will not appoint such people as heads,” he said.

“The [vote] counting was done properly, but what was lacking was the polling station head not showing the ballot papers to the observers the way they wanted,” he continued.

“According to the figures revealed by Transparency Maldives there were monitors at observers in 80 percent of polling stations. We cannot force the observers to go and observe, it is something that they [must take the initiative to] do,” he noted.

“Counting is the most critical phase, sometimes during this phase there is a tendency where some monitors/observers try to intervene in the process, in such a case unless the police are in the vicinity, they cannot immediately help,” he emphasised. “That’s why you may have seen in some polling stations the police presence.”

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Comment: The Maldives – a case study in contemporary diplomacy

This article was originally published on UAE Diplomacy. Republished with permission.

The Maldives is normally known for beautiful beaches and breath-taking blue sea. But these days it also brings up for a highly interesting case study in diplomatic law and contemporary diplomacy. A friend drew my attention to a recent court ruling on a case in which the Indian High Commission in Maldives failed to comply with its contractual duties as per the rent of its mission premises. According to a local newspaper article, the private landlord took the issue to the civil court which, in the first instance, rejected the claim due to a lack of jurisdiction. While this is not surprising, the court’s reasoning is. The Maldivian Civil Court ruled that it could not look into the matter because the Vienna Convention on Diplomatic Relations (VCDR) included immunity for diplomatic missions and diplomatic agents.

Jurisdiction is always a tricky notion as the term itself is not always clear. Sometimes it refers to territory (custody) only, however, most of the time it can be likened to power exercised by a state over persons, property or events. So, when a Court rejects the power of jurisdiction, it is probably that it does not consider itself the correct authority to legislate in respect to the issue of the person, property and event. Referring to the current case, it will mean that the Civil Court has decided that it is not in a position to make a judgement on the President of India, who was acting on behalf of the Republic of India. Generally-speaking, diplomatic missions and personnel enjoy certain privileges and immunities to carry out their duties or for the representation of their government. While diplomatic privileges and immunities have a long tradition, they were codified in 1961 by the Vienna Convention on Diplomatic Relations (VCDR).

The VCDR regulates diplomatic privileges and immunities of diplomatic missions and its agents but has little to say on civil proceedings and matters with private subjects of international law. It primarily regulates aspects of state to state relations but not the relations with international organizations, let alone private entities or individuals. The VCDR touches, for instance, in Article 21 on the obligation of the receiving state to assist in obtaining suitable accommodation (being bought or leased). In Article 23 it states that the head of mission is exempt from dues and taxes in respect of the premises of the mission and through Article 31 the diplomatic agent receives immunity from execution (measures concerning his/her personal inviolability). Interestingly enough, subparagraph 31.4 says that the immunity of a diplomatic agent from the jurisdiction of the receiving state does not exempt him from the jurisdiction of the sending State. In other words, and this is the only connection to the Civil Court’s ruling, without a waiver of immunity, civil proceedings against a diplomat can only be taken in his home country.

Unsatisfied with the Civil Court’s ruling, the private landlord appealed –with quite considerable success. On 21 August, 2013 the High Court ruled in favour of the private, Maldivian landlord. In its judgment the High Court found that ‘Maldivians are not required to follow the VCDR as there is no national legislation enforcing the regulations of the convention’ (see linked newspaper article). This decision is based on the Maldivian Constitution, which stipulates in Article 93 that citizens shall only be required to act in compliance with treaties ratified by the state AND provided for in laws enacted by the parliament.

Now, there are several ways international law can be aligned with domestic law. One way is for the constitution to comment about it in a general way. For instance, the German Constitution provides a hierarchy of law, putting constitutional law first, then provisions of international treaties and then other national or federal regulations. Sometimes, when there exists international conventional law, this can interfere with national laws. As a result, states are required to legislate, meaning that they adapt to international standards or, if the terms of the international convention are not acceptable, the country in question will not ratify the convention (approval by the parliament or any other appropriate legislative body in the country).

In the current case, the Constitution of the Maldives refers a mere 12 times to international law without establishing any kind of hierarchy nor giving any specific hint as to how international law needs to be integrated in relation to national law. The closest it comes to is in Article 93 which states that ‘Maldivian citizens shall only be required to act in compliance with treaties ratified by the state and provided for in laws […].’ In this case, there appears to be an absence of clear national legislation in reference to the Vienna Convention on Diplomatic Relations, which the Maldives ratified back in 2007. Looking at other Commonwealth Nations such as the United Kingdom, we will find the Diplomatic Privileges and Immunities Act of 1964 (the year the VCDR came into effect). This Act regulates the application of the VCDR, going into detail about potential extensions or interpretations of the articles.

While there is obviously a need for national legislation in the Maldives to clarify its position on the provisions of the VCDR, it is arguable whether this convention is relevant, at all, to the current problem. The case we have here is a situation in which a private, Maldivian individual is filing a law suit against the President of India, who was acting in the rental agreement on behalf of the Indian people. However, as stated in its preamble, the VCDR is a convention between states. Therefore, it falls into the category of public international law but has little relevance to private international law. Meanwhile, cases in which private individuals file a law suit against states do occur every now and then, these cases fall into a certain category which is internationally codified, inter alia, under the United Nations Convention on Jurisdictional Immunities of States and Their Property. While this convention was negotiated in 2004, it still has not achieved the necessary minimum number of ratifications in order to come into force. Most developed states have domestic laws regulating state immunities. For example, in the US such a law is called ‘Foreign Sovereign Immunities Act’. It stipulates that foreign governments are immune from suit in the US (state and federal courts) unless the claim falls within certain exceptions. Such exceptions include when a statesperson acts in a private capacity or is engaged in private business activities.

From the above we can draw a number of conclusions. First, the VCDR has little relevance to the case in question. It does not deal with private international law but mainly deals with matters between states and the granting of diplomatic privileges and immunities to its permanent diplomatic missions and personnel. Second, both court rulings are based on interesting justifications due to a lack of national legislation in the field of diplomatic privileges and immunities, as well as regarding the area of state immunity. Building up to this, I would like to take up the cudgels for the Maldivian Courts. While the underlying case shows that the VCDR is partly incomplete and in some detailed aspects antiquated at best, it begs the question, are the courts of a relatively inexperienced and small country such as the Maldives to know about these details? Both courts probably had no independent experts at hand nor would the argued amount of money (US$200,000) justify a very detailed background research. Hence, the lack of clarity of the situation (why the Indian High Commission ended the rental agreement prematurely), and the fact that the High Commission would enjoy diplomatic immunities (inviolability of mission premises, immunity of diplomatic personnel) would have made investigations difficult and tedious. The take away message is that the Maldives might want to look into some vital legislative actions in order to incorporate and align international law with domestic law. This would lead to more transparency and clarity for future rulings.

Kai Bruns is an Associate Professor at the American University in the Emirates. He holds a PhD in the field of Diplomatic Studies – his doctoral thesis focused on the negotiating process leading to the 1961 Vienna Convention on Diplomatic Relations (VCDR).

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Judge’s public sexual misconduct charge upheld

The High Court yesterday (27 August) concluded a case appealed by former Civil Court Judge Mohamed Hilmy and his wife Aiminath Ali after the Criminal Court ruled that they were guilty of having sex in public.

On December 21, 2011, the Criminal Court ruled that the pair were guilty as charged and sentenced them to six months banishment and 15 lashes.

Hilmy had argued that his arrest was part of a police set-up.

The High Court ruling stated that, according to the statements provided by the police officers that attended the scene, they first saw a motorbike parked on the road near the beach area and, discretely approaching the beach, saw the pair sitting on the shadowy beach with their pants down.

According to the police officers the shadows of the pair were visible each time the Hulhule’ tower light passed them and as they walked closer they noticed that Aiminath Ali had her pants down to her feet, Hilmy’s trousers were down to his knees, and Aiminath was sitting on Hilmy’s lap.

When the police officers approached within six feet and turned the searchlights on the pair, Aiminath Ali got up and moved quickly to put up her pants but one of the police officers ran and held her hand. Police said she tried to pull her pants up using her other hand but another officer came and handcuffed her.

According to the police officers Hilmy got up and started running but he was also stopped and handcuffed.

The officers reported back to their superior in Hulhumale’ police station – Sub-Inspector Muthaba Abdulsattar – and he instructed the officers to take pictures of the couple as they were.

Hilmy, who has heard high-profile cases including former President Maumoon Abdul Gayoom’s request for an injunction against the Presidential Commission, and the Herathera Resort dispute, was suspended from the bench soon after his arrest.

Shahinda Ismail, then President of the Police Integrity Commission, confirmed to Minivan News at the time that a complaint was filed by the Judges Association (JA) and the Judicial Services Commission (JSC), alleging that the judge was arrested through a police set up regarding an issue that had arisen as a result of his work in the courts.

“In their letter, the JSC said the JA are saying that he has complained to them, that he was walking in with his fiancé and police came and handcuffed both of them and basically undressed them by force,” she said.

The police denied the accusations at the time in a public statement.

“The two had to be taken into custody on suspicion of sexual behaviour in a public place as they were at the garbage dump in the south of Hulhumale’ with their pants down,” police said.

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High Court orders re-arrest of child abuse suspect

The High Court has ordered the arrest of the manager of Guraidhoo island’s (Thaa Atoll) state-owned utilities company.

Fenaka Corporation employee Ahmed Fuad was previously arrested in connection with two cases of child sex abuse but was released by Thimarafushi Magistrate Court when brought before the judges to extend his detention period.

A police media official today said that the case was appealed at the High Court after Thimarafushi Magistrate Court ordered his release.

‘’Yesterday the High Court cancelled the release order and issued an arrest warrant and extended his detention period to 15 days for investigation,’’ police media officer said.

“He was arrested at about 3:05pm yesterday,’’ the officer continued.

At the time he was arrested police told the media that the charges related to charges of molesting two minors, a male and a female aged 13 and 17.

Local media outlet Sun Online reported police as telling the paper that the two minors had testified against the accused during the hearing held to extend his detention period in Thimarafushi Magistrate Court.

Local newspaper ‘Haveeru’ reported that the victims are believed to have been in the guardianship of Fuad, who was also reported as being a senior activist in the government-aligned Progressive Party of Maldives (PPM).

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Justice “still out of reach” for Maldivian women, girls: Avaaz.org

Social activism website Avaaz has said it remained concerned at the “appalling state” of women’s rights in the Maldives, despite welcoming a decision by the High Court this week to overturn a controversial flogging sentence handed to a 15 year-old girl charged with ‘fornication’.

Avaaz, which earlier this year launched an online petition signed by over two million people calling for the minor’s sentence to be quashed, has expressed continued concern that justice remains “out of reach” for Maldivian women.

The flogging sentence – handed to the minor by the Juvenile Court in February after she had been charged with ‘fornication’ – was overturned by the High Court on Wednesday (August 21) after the girl was found to have previously denied confessing to having had consensual sex with an unknown partner.

Sources from Feydhoo, in Shaviyani Atoll, where the girl is from, previously told Minivan News that islanders had raised concerns regarding the suspected abuse of the minor as far back as 2009.

Local people were said to have suspected that the girl had been the victim of sexual abuse, not just by her stepfather – who has subsequently been charged with several sex offences – but also by a number of other unidentified men from the island.

The High Court concluded that the minor, found to be suffering from post-traumatic stress disorder, was also unable to correctly define pre-marital sex according to the law.

“The High Court’s ruling is a step forward, but the Gender Ministry should now ensure that the girl receives a proper education, is not sent back to the custody of relatives who failed to protect her, and ensure that she doesn’t end up ghettoised because of stigma,” stated Avaaz.

“Glimmer of hope”

After visiting the country earlier this year to lobby the Maldives government to overturn the minor’s case, Avaaz said it continued to advocate for systemic legal reforms to overcome “serious hurdles women and girls face in trying to get justice for gender-based crimes”.

“Today people in the Maldives and across the globe celebrate that this young girl is free and won’t be flogged,” said Avaaz Campaign Director Jeremy Waiser. “It is a glimmer of hope which must not be an isolated case – now it’s time to listen to the majority of Maldivians and kick start major reforms to protect women and girls and put an end to flogging for consensual sex outside of marriage, once and for all.”

Avaaz pointed to the recently published results of a survey conducted on its behalf by Asia Research Partners that concluded that nearly two-thirds of Maldives nationals surveyed would support a moratorium on flogging.

According to Avaaz, the first survey of its kind to be conducted in the Maldives found an “overwhelming” 92 percent of those surveyed believe that laws and systems to protect women from sexual assault should be reformed.

With the upcoming presidential election scheduled for September 7, Waiser argued that ensuring rights for both women and girls should be treated as an issue of huge importance by all candidates standing next month.

“The ruling and the recent opinion survey should serve as a wake-up call to all candidates and parties that they cannot afford to neglect one half of the Maldivian population – women and girls want to live without fear of persecution and with dignity,” he said.

“The vindictiveness with which the Prosecutor General’s office pursued the case against this Maldivian child highlights the dangers that women and children face in the Maldives,” the statement concluded.

“Politicised” issue

Some government figures have been critical of international campaigns targeting the reputation of the country’s lucrative tourism industry in order to push for legal reforms.

Discussing the campaign by Avaaz in the Maldives, Attorney General (AG) Azima Shukhoor criticised unnamed groups for having “politicised” the issue, arguing such campaigns they had complicated the work of Maldivian authorities.

In March this year, former Deputy Tourism Minister Mohamed Maleeh Jamal directly questioned the motives behind the Avaaz campaign calling them “dubious”, despite accepting a need for “capacity building” in parliament and other institutions.

“People should not be doing anything to damage the [tourism] industry. In Switzerland, you would not see a campaign designed to damage Swiss chocolate. Likewise you would not see a German campaign to damage their automobile industry,” he said.

However, organisations like the Human Rights Commission of Maldives (HRCM) have this week stressed the need for strengthening measures to protect victims of sexual abuse to prevent other similar cases from occurring.

Meanwhile, Amnesty International – which has previously warned that the 15 year-old’s case was the “tip of the iceberg” in terms of the country’s treatment of victims of sexual offences – has released a statement this week calling for a moratorium on flogging.

“Annulling this sentence was of course the right thing to do. We are relieved that the girl will be spared this inhumane ‘punishment’ based on an outrageous conviction,” said Amnesty’s Deputy Asia-Pacific Director Polly Truscott.

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HRCM claims mandate pushed to limit over 15 year-old’s flogging sentence

The Human Rights Commission of Maldives (HRCM) has said its mandate has been pushed to the limit after “braving” the country’s courts to oppose a controversial flogging sentence handed to a 15 year-old sexual abuse victim that was overturned this week.

The flogging sentence handed to the minor by the Juvenile Court in February was overturned by the High Court yesterday (August 21) after the girl denied confessing to having had consensual sex with an unknown partner.

HRCM member Jeehan Mahmoud said that the decision to punish the minor, which has since garnered global media attention, represented a “continuous failure” on behalf of the whole state to protect children and other victims of sexual abuse.

She therefore called on all stakeholders to strengthen their internal mechanisms for protecting vulnerable people in the country.

“Lots of money has been invested, but we have failed to uphold a system,” said Jeehan. “There must be a better translation into reality. We need to ensure that the group works for all cases – rather than the one or two that gain international attention.”

Jeehan said that as part of efforts to appeal the flogging sentence handed to the minor, the HRCM had adopted what she called an unprecedented tactic of “braving the courts” as a third party by directly approaching the judiciary.

“We required permission from the courts,” said Jeehan. “This was a groundbreaking opportunity…we pushed our mandate to its limits.”

Authorities had previously said that the minor had confessed to having consensual sex during a separate investigation into her alleged abuse that had resulted in the birth – and subsequent murder – of her baby.

On the back of the High Court’s ruling yesterday (August 21), Amnesty International – which has previously warned that the 15 year-old’s case was the “tip of the iceberg” in terms of the country’s treatment of victims of sexual offences – has released a statement welcoming the decision.

Amnesty went on to argue that the sentence ought not to have been imposed in the first place, before calling for a moratorium on flogging.

Despite the moratorium calls, President Dr Mohamed Waheed defended the wider use of Islamic Sharia in the country’s courts, while expressing his satisfaction with the High Court verdict this week.

“I also note that [the] verdict has established beyond doubt the sound principles of Islamic Shariah for such cases and became part of the country’s legal framework,” said the president in a statement.

“Considering the state of the country today, with sexual violence against women and children increasing daily, it is essential for the criminal justice system to ensure that women and children do not become prey to further abuse. I believe that establishing procedures necessary for the legal framework to protect such children is a welcome development to ensure that such tragic incidents do not repeat.”

Waheed added that he saw the decision as “major progress” in the protection of children’s rights. He concluded by saying that the child was still under the state’s care.

“The state will continue to provide the assistance she needs to overcome the tragic ordeals she endured and live a happy life in our society.”

Attorney General (AG) Azima Shukhoor echoed President Waheed’s comments today, arguing that Islamic Sharia is perfectly well-equipped to protect the rights of children.

The AG also spoke of an online Avaaz petition calling for both the minor’s sentence to be overturned as well as an end to flogging, criticising those she said had “politicised” the issue, arguing that they had made the work of Maldivian authorities difficult.

The online petition was signed by over 2 million people – a group more than six times the population of the Maldives.

The Maldivian judicial system currently practices a combination of common law and Islamic Sharia. Article 142 of the country’s constitution mandates that any matter on which the constitution or the law is silent must be considered according sharia.

Maldivian civil society group Advocating the Rights of Children (ARC) meanwhile has continued to press the government for ratification of the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure.

This protocol provides an additional avenue of complaint should the state fail to uphold the rights of a child, which ARC mantain would greatly improve upon current domestic mechanisms.

“The case of the 15- year old girl is a good example of how the procedure could have been used to approach the UN Committee,” the group’s co-founder Zenysha Shaheed Zaki told Minivan News.

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Maldives High Court overturns flogging sentence for 15 year-old charged with fornication

The High Court has today overturned a Juvenile Court decision to sentence a 15-year old to 100 lashes after she was charged with fornication.

The case of the minor, who was previously found to have been a victim of sexual abuse, has garnered global media attention and condemnation from numerous human rights groups.

At the same time, an online petition calling for her sentence to be revoked has been being signed by over two million people.

Despite today’s hearing being held behind “closed doors” (as per Article 42 of the constitution), the High Court later released a statement with details of the verdict.

According to the statement, the High Court decided to revoke the minor’s sentence after she denied confessing to having consensual sex with an unknown partner during the Juvenile Court trial. Authorities previously said the minor had confessed to having consensual sex during a separate investigation into her sexual abuse.

According to Islamic Fiqh scholars, a confession of fornication can be retracted before the resulting sentence is carried out in full, the High Court statement added.

It was further noted by the court that there were discrepancies in the statement given by the girl to the Juvenile Court. The High Court concluded the minor, found to be suffering from post-traumatic stress disorder, was also unable to correctly define pre-marital sex according to the law.

The High Court argued that its verdict had been based on the evidence that the girl was ‘unfit for trial’ during investigations into her alleged abuse and the subsequent Juvenile Court hearings against her.

The court said that the minor had provided her original statement in the capacity of a ‘victim’ and not a suspect, and that authorities had therefore not given her the fundamental rights legally required of a suspect in a crime.

The statement concluded by saying that the panel of judges presiding over the case did not believe that the Juvenile Court had enough evidence to prove beyond any doubt the charges against the girl. ‘Hadd’ sentences cannot be issued unless a crime can be proved beyond any doubt, the High Court argued.

To date, the girl remains under the care of the state, serving the sentence of house arrest at the children’s shelter on Vilimale’.

Successful appeal

The High Court verdict was issued after the conclusion of an appeal case against the Juvenile Court’s ruling, which was submitted by the Attorney General’s Office on March 27.

In January, the Prosecutor General’s Office claimed that charges of fornication had been raised against the girl “after extensive assessment of the case”, and that they had “no intention of reversing the decision”.

According to local media, Attorney General Azima Shakoor and officials from the Human Rights Commission of Maldives (HRCM) were present at the closed door hearing held today (August 21).

Vice President of the HRCM, Ahmed Tholal, stated that the commission had worked to protect the victim from the beginning of the case.

“It is due to the negligence of all state authorities that the case went as it did, subjecting her to an undeserved sentence while she was already a victim of abuse,” he said.

President’s Office Media Secretary Masood Imad described the High Court ruling as a “fantastic” development that he believed vindicated President Mohamed Waheed Hassan’s stance to have the flogging sentence overturned through the Maldives’ court system.

“The president has continued to stress his intention of having the case overturned by following the process of law. He has got it done by law, which is fantastic,” he stated.

Masood added that the government’s determination to have the sentence overturned was “typical” of President Waheed’s tenure as head of state since coming to power in February 2012.

Asked what impact today’s judgement might have on the government’s previously stated commitment to overseeing legal reforms of the treatment of sexual abuse victims and the use of flogging as a punishment, Masood requested contacting the Attorney General’s Office.

Attorney General Azima Shakoor was not responding to calls at time of press.

Victim accused

In June 2012, the victim gave birth to a baby that was later discovered buried in the outdoor bathroom at her residence. Her stepfather was subsequently charged with sexual abuse of a child, possession of pornographic material, and committing premeditated murder.

Meanwhile, her mother was charged with failing to report child sexual abuse and with concealing a crime.

In January, an official of the Prosecutor General’s Office stated that the charges of fornication were levied in relation to a separate offence of premarital sex that had emerged during the police investigation into the baby’s death.

Sources from Feydhoo, in Shaviyani Atoll, where the girl is from, previously told Minivan News that islanders had raised concerns regarding the minor as far back as 2009. Local people were said to have suspected that the girl had been the victim of sexual abuse, not just by her stepfather, but also by a number of other unidentified men from the island.

The Attorney General’s Office appealed the case on March 27. The announcement was made on the back of appeals from international human rights advocacy organizations and Avaaz.org, which launched an online petition – gaining over two million signatures.

The UN at the time released a statement which noted allegations that the child had been a victim of long-standing sexual abuse:

“Under international legal human rights obligations of Maldives, corporal punishment, including flogging, amounts to cruel, inhuman or degrading punishment or even to torture.”

Meanwhile, the religiously conservative Adhaalath Party, which heads the Ministry of Islamic Affairs in the current administration, previously declared that the 15 year old rape victim “deserves the punishment”.

“The purpose of penalties like these in Islamic Shariah is to maintain order in society and to save it from sinful acts. It is not at all an act of violence. We must turn a deaf ear to the international organisations which are calling to abolish these penalties, labeling them degrading and inhumane acts of torture,” said the party.

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No Maldivian statute requiring citizens to observe diplomatic law: High Court

The High Court has today (August 21) ruled that the Maldivian citizens are “not required” to act in compliance with Vienna Convention on Diplomatic Relations (VCDR), as no national law currently exists in the country that requires enforcement of the convention.

The High Court’s ruling came alongside a decision made regarding an appeal case filed at the court concerning breach of a lease agreement between an individual named Mohamed Shareef and the High Commission of India.

During the hearings of the appeal case, the appellant Shareef’s lawyer claimed that in February 2006 the Indian High Commission, on behalf of the President of India, had entered into the agreement with Shareef concerning the leasing of Dhivehige of Henveiru Ward – the residence of the Indian High Commissioner to the Maldives.

According to the lawyer, the parties had agreed to specific terms that need to be fulfilled before the contract could be set aside, but the High Commission had dishonored those terms when it vacated the premises on September 2009 – claiming to have terminated the contract.

In breach of contractual duty, Shareef sued the High Commission in the Civil Court, claiming damages worth US$196,101 (MVR3,023,877.42). The claims included US$193,666 (MVR 2,986,329.72) as rent owed for the remainder of the contract period, while US$ 2,435 (MVR 37,547.7) was sought for refurbishment of the premises.

In 2010, the Civil Court rejected the case claiming that it did not have jurisdiction to look into the matter as the VCDR – to which the Maldives is a party – included immunity for diplomatic missions and diplomatic agents.

The court argued that these immunities had also been “implicitly incorporated” into the contract between the parties, with the result being that the Civil Court would be in violation of the treaty should it proceed with the case.

During the appeal, the Attorney General’s Office also intervened, admitting in court that national legislation was required to enforce an international treaty as well as requesting that the court make a decision on whether treaties such as the VCDR had been ratified prior to the enactment of the current constitution in 2008.

The Maldives ratified the 1961 VCDR in October 2007 under the leadership of then Foreign Affairs Minister Abdulla Shahid – now Speaker of Parliament. The convention outlays a framework for diplomatic relations between independent countries, and specifies privileges and immunities granted diplomatic premises.

Overruling the Civil Court decision, the High Court in today’s verdict claimed that under Article 93 of the Constitution, Maldivian citizens shall only be required to act in compliance with treaties ratified by the state and provided for in laws enacted by the parliament. The High Court claimed that no such law had been introduced.

Article 93(a) of the constitution states: “Treaties entered into by the Executive in the name of the State with foreign states and international organizations shall be approved by the People’s Majlis, and shall come into force only in accordance with the decision of the People’s Majlis.”

Article 93(b) states: “Despite the provisions of article (a), citizens shall only be required to act in compliance with treaties ratified by the State as provided for in a law enacted by the People’s Majlis”.

Issuing the final verdict, the High Court invalidated the Civil Court’s decision to dismiss the case in favour of Shareef.

However, both the High Court and the Attorney General’s verdict noted that such a case could strain the bilateral relations between India and Maldives. In hope of avoiding this, a period of three months has been given for the parties to come to an out-of-court settlement.

Should the parties not be able to come to an agreement within the given three months, the High Court in its verdict ruled that Civil Court has the jurisdiction to proceed with the case.

Meanwhile an official from the Indian High Commission said that it did not wish to comment on the matter while it remains in the court.

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