Tag: human rights

The politicisation of life, death and faith

The Parliament (Majlis) today resumes the debate on amending the Clemency Act to bring back capital punishment. Although the constitution allows the death penalty, the Maldives is abolitionist in practice.

The last time the Maldivian state put a person to death was in 1953. Depending on whether or not a majority of MPs agree to send the proposed amendment to the committee stages, today begins the process of reversing this tacit understanding of the death penalty as a form of cruel, degrading and inhuman punishment.

The amendment was proposed by MDP MP Ahmed Rasheed (Hoarafushi) after an urgent motion he introduced earlier in the Majlis session of March 8 to discuss the recent escalation of violent crime. It came on the foot of a savage altercation between members of rival gangs on March 4 in which three men were injured and a member of the public was forced at knife-point to hand over his motorcycle to one of the perpetrators. Blood was spilt in broad daylight, at the Artificial Beach, a public place frequented by families. Clearly, it is an issue that requires the immediate attention of the Majlis.

The debate that ensued, however, appeared to focus less on practical measures that can be taken to address the problem and more on finding a scapegoat with the meatiest political flesh for rival MPs to bite into.

Several MPs rushed to point the finger of blame at anyone else except the legislature itself: the security apparatus was acting with impunity in its refusal to be answerable to the Majlis; the criminal court was not doing its job properly; the president had been too lenient with members of the old regime who committed acts of torture and embezzled state funds; and the president had neglected to give due importance to the matter in his inaugural address of the Majlis on March 3, allegedly discouraging members from pursuing the matter with the required urgency.

People in glasshouses

“I was arrested on July 7 last year in allegations of planning to attack a politician with a sharp implement. They kicked in the door of my house. That was how it happened with me. But people who kill others on the street walk free,” Deputy Speaker of the Parliament and MP of the opposition-aligned People’s Alliance (PA) Ahmed Nazim said, joining the debate on March 8.

“And when I was under house arrest, confined within my own four walls, there were people throwing stones at my house, shattering the glass. They, too, are out there somewhere, walking free,” he continued. He was, Nazim said, “one of the few people in the Majlis with personal experience” of gang warfare and violent crime.

The ‘personal experience’ factor was significant in the debate. In addition to Nazim, MP ‘Reeko’ Moosa Manik (MDP) and independent MP Ahmed Amir, relayed similar narratives of up close and personal encounters with violent crime. “I, too, was imprisoned,” Moosa said.

Having made allegations of torture against former President Maumoon Abdul Gayoom, his proposed solution to the problem was to imprison Gayoom himself. “As long as Gayoom walks free, there will never be an end to this problem”. MP Amir relayed his own woes of being “hit in the back while an MP”, and updated the Majlis on the fact that nothing has been done since, leaving him with a feeling of diminished equality.

MP Ahmed Rasheed, had a similar personal narrative underlying his push for implementing the death penalty. Based on “one case in which I was personally involved in”, he generalised for the Majlis the woeful inadequacies of the current criminal justice system.

“The lawyers that the Prosecutor General send to the court to represent the state are usually young children, with no experience”, he said. “With an hour, half an hour or twenty minutes to go before the court sits, these children are handed hefty case files, and told: “Here, young lady, take the file”. They are, of course, trounced by the more experienced lawyers for the defendant”, he said.

MP Rasheed’s blatantly sexist hymn sheet was shared by Deputy Speaker Nazim, who also referred to the “young 18-19 year-old girls” who represent the Prosecutor General in court, and are allegedly posing a threat to national security. Neither MPs mentioned that the more educated members of the judiciary are to be found among the country’s youth and not among the ‘experienced judges’ most of whom have had very little legal training despite having been on the bench for long periods of time.

Putting the death penalty in an Islamic frame

The deeply personal nature of the Majlis’ debate on an issue of such national importance is extremely troubling. So too is the quality of the debate so far that has put the death penalty within the framework of Islam and Shar’ia. Very few MPs have displayed any knowledge of either the long and incessant international debate surrounding the death penalty, nor the rich Islamic jurisprudence on capital punishment. Nor did they demonstrate an understanding that the matter of gangs and rising crime cannot be solved by personal opinions but may need proper study and expert advice across the board on the criminal justice system.

One MP, Ahmed Saleem, for instance, declared all legislation as irrelevant and unnecessary given the completeness of the Qur’an. To clarify his claim, he presented MPs with a hypothetical scenario: “What if”, he said, “someone like Dr Shaheed [former Foreign Minister] were to say that there is nothing in the Qur’an on how to run a foreign ministry.” Such a claim can only be made out of ignorance, for the Qur’an does give guidance on foreign policy, he said.

“God created tribes, countries and states so as each can introduce themselves to the other… Had God made only one country, there would be no need for a Foreign Ministry.” Bang went the Treaty of Westphalia, centuries of diplomacy, and the concept of social constructs, all shot down to nothing with one sweeping statement.

Reducing the death penalty in Shari’a to mere advocacy to “kill the killer” is to reduce the rich and complex debate surrounding the death penalty in Shari’a to mere revenge. Such reductionism is a practice more often associated with those who criticise Islam from the outside than with those who speak in its praise from within.

Although all Muslims accept the permissibility of the death penalty because it is addressed in the Qur’an, its application is varied ranging from those who impose it to a short list of crimes to those who call for a moratorium on it altogether. Capital punishment in Islamic law, as reputed Islamic scholars have highlighted, has its own dhawabit (checks and balances). It is not imposed until due process has been observed, and all extenuating circumstances fully considered. Those who are calling for the death penalty ‘as per Sharia’ would also do well to remember, or to find out, that the state only has the power of execution – imposing it is not a power of the state.

Arguing against the death penalty in the United States from an Islamic perspective, Dr Azizah Y al-Hibri, professor at the T. C. Williams School of Law at Richmond University for example, has pointed out that in Shari’a it is the victim’s family alone that has the right to seek qisas (a form of retributive punishment) against the murderer. It is the majority view of Islamic scholars that if the victim’s family does not seek qisas in court, the state cannot do so on its initiative – unlike the common law system.

The state does have the power, however, to protect the public through other less retributive punishments such as confinement or exile: what the Maldivian state has opted to do for almost six decades. This restriction on the state is one of the most important – and relevant – aspects of the Shari’a to the current debate. It, or any other jurisprudence, has yet to be included in the discussions.

The importance of Shari’a’s restrictions on the state lies in the status of the judiciary as a branch of the state. Even in countries where the independence of the judiciary has been proven beyond reasonable doubt, restricting the power of the state to take away the life of its citizens is a crucial element of justice. When the state is authoritarian, when the judiciary is biased, or when other branches of the state exercise undue influence over the judiciary, it becomes essential for ensuring that life is not taken away arbitrarily.

Punishment without justice

Herein lies the crux of the matter. Questions over the independence of the Maldivian judiciary have now been at the forefront of public discourse for the better part of a year.

The International Commission of Jurists (ICJ) recently published the results of its fact-finding mission to the Maldives in September last year. The report found the Maldivian courts to be failing in their duty to serve the public impartially and laid a lion’s share of the responsibility on the Judicial Service Commission (JSC), charged with imposing and maintaining ethical and professional standards of the Maldivian judiciary.

The JSC has dismissed the ICJ report as “irresponsible” and the Constitutional stipulation to remove all unqualified and ethically questionable judges from the bench as “symbolic” with the result that a large number of the judiciary comprise of convicted felons and the morally dubious.

In 2010, the JSC received over 140 complaints against the judiciary, none of which have been investigated. Currently there a total of 115 complaints pending investigation at the JSC, accumulated from 2008 onwards till the present. Questions have been raised over the JSC’s fairness in its recent appointments to the High Court, and it is due to appear before the Supreme Court on the same issue.

Several other failures of the JSC have been equally blatant, but there appears no authority capable, or willing, to hold the JSC accountable. There is no agitation for reform or independence coming from within the law community itself. The Majlis, and its oversight committee supervising the conduct of independent commissions, is the only authority that can bring the JSC to account. So far, it has not done so in any meaningful way.

It should be noted, however, that at the end of last year, the Majlis committee did instigate an enquiry of sorts – one that raises more questions than answers them. The committee, whittled down from 11 to three members for unexplained reasons – all three of whom are lawyers – have been summoning individual JSC members for questioning. The matter raised in these enquiries, unusual both in the fact that it is summoning individual members to answer questions over the conduct of the Commission as a whole and in its closed nature, are secret and banned from media coverage. So far as is known, the enquiries have been of an administrative nature – who attended meetings when and such – rather than of an investigative nature probing the JSC’s refusal to carry out its constitutional duties.

The investigated and the investigators – where is the dividing line?

One of the characteristics of the debate on March 8, which brought the death penalty to the fore, was the determination of some MPs to blame the security forces of the country.

If only they were to be made answerable to the Majlis Oversight Committee on National Security, things would change, went the argument. Problem is, at the helm of the National Security Committee is Abdulla Yameen taken into ‘protective custody’ by the Maldives National Defence Forces (MNDF) in July 2010 and held on the island of Aarah, the Presidential Retreat, for nine days.

The police arrested Yameen on corruption charges earlier that month, but after about six hours in custody, the Criminal Court, in an extraordinary sitting held at midnight, ruled that Yameen should be released into ‘house arrest’. When supporters of the ruling Maldives Democratic Party (MDP) gathered outside his house, MNDF took him into what they called ‘protective custody’.

Yameen, claimed, however, that MNDF had detained him against his will. The Supreme Court found MNDF’s actions to have been in breach of the Constitution; the ICJ report was highly critical of the executive’s involvement in the actions. Currently Yameen is back at Court claiming millions of Rufiyaa in damages for his detention.

In the immediate aftermath of the debacle, the National Security Committee began to summon senior members of the MNDF and other members of the security apparatus before it. MDP MP Reeko Moosa Manik claimed the Committee’s actions were instigated as a form of revenge by Yameen against MNDF and called for his resignation from the Committee. It did not materialise.

In addition to the history of personal involvement between the security forces and Yameen, there is also the more recent spectre of allegations of corruption worth over US$800 million against Yameen published in various South Asian media outlets from India to Burma and the Maldives.

Yameen has denied the accusations, first published in Indian current affairs magazine, The Week on February 11, alleging that the scheme involved blackmarket oil deals between the State Trading Organisation (STO), when it was headed by Yameen, and the Burmese military junta.

More recently, the Democratic Voice of Burma, an independent Burmese news outlet, has connected the same oil-scam to the explosion of heroin in the Maldives in the early 2000s. The heroin addiction of a whole generation of Maldivian youth and its current problems with violence and drugs has been well documented, and its effects clear to see.

Even if the allegations are untrue, it is clearly in the public and national interest that any state figure of authority implicated in such serious offences, to declare a conflict of interest and distance themselves from holding sway over investigations with even the remotest of links to them personally.

There was no reference made to the personal history between Yameen, the president of the National Security Committee, when his fellow People’s Alliance (PA) party member, Deputy Speaker Nazim, so fervently proposed cooperation between the security forces as the solution to the country’s escalating problem of gang violence.

Own backyard

There are currently five bills crucial to the maintenance to law and order, security and crime reduction pending members’ attention at the Majlis. Chief among these, and pending the longest, is the Penal Code.

Submitted in October 2009, it has now been in the ‘committee stages’ for exactly 17 months to the day. Awaiting attention is also the Evidence Bill, submitted in just a month after the Penal Code, in November 2009.

The Narcotics Bill was submitted in March 2010, almost a year ago; and the Bill on Special Measures to Combat Crime was proposed a month later. Neither has passed the ‘committee stages’.

More recently submitted is the Jails and Parole Bill, pending since October last. Also awaiting Members’ deliberation is an amendment to the Police Act submitted in June 2010, and the Private Security Bill submitted the same month.

As a majority of the Majlis remains preoccupied with long recesses, extending their own privileges, boycotts and deadlocks, these vital pieces of legislation – without which even an unbiased judiciary would find it difficult to perform its duties – gathers to itself the dust of neglect.

MP Mohamed Musthafa, who proposed the Bill on Special Measures to Combat Crime in April 2010, accused members of the opposition of deliberately stalling its passage through the parliament. “If you push that Bill through, the credit will go to the government, there will be no advantage in that for us,” Musthafa said he was told by some opposition MPs. “Intoxication with politics is leading this country to its ruin,” he said.

As the issue opens up for debate at the Majlis again today, it remains to be seen whether any MP who calls for the imposition of the death penalty in order to fulfil its ‘Islamic duties’ refer to the manner in which the Qur’an urges the victim’s family to move forward and to forgive (Qur’an 2:178, 42:40) even as it provides for the right to demand qisas.

It also remains to be seen whether the same MPs would remind fellow members of the instances in which the Qur’an favours forgiveness over revenge or punishment and extols its virtues in many other contexts (Qur’an 42:40; 5:45; 2:237; 24:22; 2:109).

It will also be interesting to see, whether any of the debate calls on existing empirical evidence that reveals no direct link between capital punishment and deterrence of crime. Amnesty International has found, for example, that in the United States crime is lower in states where capital punishment is not practised compared to the states where it is.

Its conclusion was that: “The threat of execution at some future date is unlikely to enter the minds of those acting under the influence of drugs and/or alcohol, those who are in the grip of fear or rage, those who are panicking while committing another crime (such as a robbery), or those who suffer from mental illness or mental retardation and do not fully understand the gravity of their crime.”

Whatever the quality or outcome of the debate, the result will be a strong indicator as to how far the politicisation of life has travelled in the two years since the Maldives became a democracy. If it has come so far as to be able to impose its will beyond life to death, there is little hope that this government is capable, or willing, to resuscitate the increasingly moribund Maldivian democracy.

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Comment: Commonwealth members descend from deeds to words on human rights

Today Commonwealth Day will be celebrated across 54 countries. The association holds about a third of the World’s population. It prides itself on having high human rights and democracy based fundamental principles.

But do these translate into the lives of its 1.4 billion population, or make any impact at international fora that debate and decide rights and freedoms? Sadly even the kindest and gentlest answer would come up with a definite ‘no’.

This conclusion is once again affirmed by the latest report of The Commonwealth Human Rights Initiative. The third in a series entitled ‘Easier Said than Done’ the report analyses the performance of the 12 Commonwealth countries [on the Human Rights Council 2008 to mid 2010, prior to the Maldives’ membership] – Bangladesh, Cameroon, Canada, Ghana, India, Malaysia, Mauritius, Nigeria, Pakistan, South Africa, the United Kingdom and Zambia – who sit on the Human Rights Council. Together they also account for about one third of the body’s 47 members.

Before getting elected to the Council each had made specific pledges in the spirit of upholding “the highest standards in the promotion and protection of human rights”.

Comparing promises to actual performance both at the domestic and UN levels between mid- 2008 and mid-2010 the report shows that many Commonwealth members were in fact at the forefront of efforts to undermine human rights mechanisms such as the Special Procedures, the Human Rights Council Advisory Committee, the Universal Periodic Review and the Office of the High Commissioner for Human Rights. Several actively campaigned against country specific scrutiny of gross human rights violators.

At the domestic level, as well, no country entirely fulfilled all its Council pledges. The report also discovers that, except on one resolution the Commonwealth members could not act together to agree on any Council resolution.

The Commonwealth, whose members carry strong memories of their own struggles for rights and freedom, may have had its finest hour – or perhaps its last hurrah – during the struggle against Apartheid. But today, in the midst of Commonwealth Day celebrations, it is hard not to notice its reduced zeal for preserving civil liberties or its dismal record in upholding human rights beyond grandiose words.

The descent from deeds to words is evidenced in the reluctance of its oversight mechanisms – such as the Commonwealth Ministerial Action Group -to take to task seriously erring members or to activate its mandate to scrutinise Commonwealth countries that persistently or seriously violate fundamental values such as human rights

Today, aged almost 62 the Commonwealth appears ever more infirm in its convictions as it’s Secretary-General suggests that perhaps human rights precepts are merely “aspirational” while deeds are more realistic and different.

Speaking about the UDHR, the response by the current Commonwealth Secretary-General to an article in the Guardian on attempts to silence human rights within the Commonwealth Secretariat is indicative. He says, “The 1948 Declaration remains at best an aspiration, at worst a loose promise. Such is the grey area of words, which is perhaps best set aside for the more prosaic reality of deeds.”

The assertion seems to give short shrift to the binding norms that, born out of the Universal Declaration, have found their way into the constitutions of Commonwealth member states and become legal obligations owed by governments to their people and to the international community. The hardnosed approach also clearly sights the Secretary-General in empathy with the worst performing Commonwealth members at the Council who make identical arguments about the primacy of sovereignty and use realpolitik excuses to avoid human rights compliance and the responsibility to protect.

CHRI has always held that the Commonwealth is about human rights or it is about nothing at all. Soft pedalling its self-professed premier values can only lead to the diminution of the Commonwealth into eventual oblivion: and disparaging the canons that underpin the practical realisation of rule of law good governance and development in the lives of ordinary people across the association will also mortgage the future of the mostly poor and vulnerable populations that live in member countries.

This October the Commonwealth Heads of Governments will once again meet in Perth Australia. This will mark the 20th anniversary of the Harare Declaration – the high noon of Commonwealth activities in human rights.

An Eminent Persons Group on Commonwealth Reforms will present its findings to the Heads. After studying the Commonwealth’s track record on human rights the Group stated, around the same time as the Secretary-General’s response to the Guardian, that “silence is not an option” for the Commonwealth.

Unless it energetically reclaims the outspoken, leading role in promoting and protecting human rights it once displayed in international fora such as the UN, future Commonwealth Day celebrations will only symbolise the last gasps of a moribund association.

R Iniyan Ilango is the Cooridinator of the Strategic Initiatives Programme for the Commonwealth Human Rights Initiative, headquartered in New Delhi.

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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Comment: A preface to explaining democratisation in the Maldives

If several different people don’t write about the significant events changing their societies, romanticization of and myths around those events creep in, and that is one way unreal heroes and unreal villains are born. Because of this lack of literature on the historic changes that have been taking place in the Maldives, this musing is a preface to democratisation in the Maldives.

Since the beginning of what Samuel P Huntington famously called the “third wave” of democratisation in mid-1970s, efforts toward finding explanations of comparative democratisation intensified. To this day, there is however no single theory of demoratisation that will satisfy everyone or that will explain every single case of democratisation. There are probably many factors and independent variables that explain democratisation.

The Maldives’ case also shows that no single explanatory factor or theory is sufficient. But, following Huntington, we could try to explain Maldives’ democratisation along its “why” and “how”.

The Why: modernisation, valuation and grievances

There will hardly be any Maldivians who seriously dispute that the current president Mohamed Nasheed has no important role to play in democratisation in the Maldives.

“What and who” he is, I think, is a representative case of why and how democratisation happened in the Maldives. The “what” factors are well explained by modernisation theory of democratisation most famously advanced by Martin Lipset. Lipset argued that that economic development and modernisation are strongly correlated with democracy. In brief, he argued that education (an aspect of modernisation) facilitates people’s valuation of their beliefs and values and thereby they come to accept democratic values.

I said Nasheed is a representative case because I want to emphasise five factors relevant to democratisation in the Maldives. First, Nasheed was educated in Great Britain where he was, both as a child and an adolescent, exposed to democracy in practice.

Second, I want to emphasise the fact that the global discourse of democracy as the most viable political system permeated the hearts and minds of many Maldivians.

Third, Nasheed is not a representative case of the whole or even majority of the Maldives’ population. He is a representative case of only those who are relatively exposed to the discourse of democracy and who have been one way or another aggrieved by the personal dictatorship of Gayoom.

Fourth – and I know this is going to be very controversial – the Maldives’ democratisation is not a mass-based democratisation movement as evidenced by the relatively low support the “democratic opposition” garnered in elections starting from the election for Constitutional Assembly. Alternatively, this is evidenced by the high support Gayoom still attracts.

Hence, the Maldives is closer to the transition model explained by Guillermo O’Donnell. The Maldives is a case of democratisation largely by elites who had either come to value democracy (because of modernisation factors) and/or who were aggrieved by the personal dictatorship of Gayoom (While the “clan power-struggle” model explained by Mohamed Nasheed in his illuminating book, Maldives Politics, bears some structural similarity to this model, I doubt Nasheed’s model any longer explains the Maldives’ politics).

Fifth, international factors, which are of course again well documented in democratisation literature, played an important role by virtue of the fact that both the authoritarian system and opposition were subjected to what I call international “politics of naming and shaming”.

The How: a play of elites?

“Why” factors, however, don’t tell us the causers of democratisation. This is where transition model is helpful.

Democratisation researchers subscribing to transition paradigm say there must always be a crisis in the authoritarian regime for democratic transition to take place. It could be an economic or other crisis.

Where was this crisis in the Maldives? Was it Evan Naseem’s murder and subsequent riots? Was it 12/13 August mass arrests and subsequent divisions in Gayoom’s regime? Or was it the December 26 Tsunami?

Another factor emphasised by O’Donnell is the rise of a more moderate/liberal elite faction within the government. Alternatively, the dictator himself or herself could start to liberalise because of the crisis.

The Maldives I think is a case of ‘transplacement’ transition where transition occurred through the actions of both the government and the opposition. Gayoom of course maintains it is a case of ‘transformation’ where he initiated reforms.

It is debatable whether Maldives is one of transplacement or transformation or mixed case.

It certainly is not a case of replacement where the personal dictatorship of Gayoom was overthrown or replaced by democrats.

It is perhaps more accurate to say that liberalising elites within the government played the game within the regime. Also, ironically, the hiring of (PR firm) Hill & Knowlton itself could have played against the hardliners in regime as ‘public relations’ never work without real reforms.

The transition paradigm also gives room for the opposition elite. In fact, in the Maldives the opposition protests (again by no means popular mass mobilisations) and opposition campaigning by figures such as Ahmed Shafeeg Moosa using 21st century information technology were the reasons a liberalising elite faction was born in the first place.

There were also factors that facilitated or obstructed democratisation in the elite-interplay. These included, among other things, the problem of divisions within the opposition itself. Usually, it is the moderate elites within the opposition that facilitate democratisation.

Revolutionary-minded figures such as the current president Mohamed Nasheed within the opposition were unsuccessful in mobilising enough numbers for an outright overthrow of Gayoom regime. They ultimately had to moderate or adapt themselves towards a “transplacement” model where the opposition and regime elites negotiated the terms of democratisation.

Finally, while the opposition protests were not mass-mobilisation protests, they had the benefit of seeking international attention for a “politics of naming and shaming”. As a country dependent on import, foreign aid, tourism, and good standing with the outside world, the “politics of naming and shaming” by long-standing human rights NGOs like the Amnesty International and pressures from the EU became too much for the authoritarian regime.

So that is how the Maldives transitioned to an “electoral democracy” in October 2008.

Azim Zahir is studying for a Master of Human Rights at the University of Sydney, Australia.

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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Maldives backs creation of International Human Rights Court

The Maldives has asked the UN Human Rights Council to consider an International Court of Human rights, offering redress for the victims of human rights violations and strengthening the international human rights system.

State Minister of Foreign Affairs Ahmed Naseem spoke at the opening of the UN Human Rights Council and again at an event hosted by the Maldives yesterday, attended by over 150 diplomats, UN officials, and NGOs workers.

The event was organised by the Permanent Missions of Maldives, Switzerland and Uruguay, in cooperation with the International Commission of Jurists, the Panel on Human Dignity and the Geneva Academy of International Humanitarian Law and Human Rights, focusing on accountability for human rights abuses. Speakers noted that there was no way in which an individual whose rights have been violated can hold a State to account at international level, and discussed how such a court might function practice, as well as the challenges to its establishment.

Speaking at the event were Professor Paulo Sergio Pinheiro, Commissioner and Rapporteur on Children, Inter-American Commission on Human Rights; former Independent Expert of the UN Secretary-General for the study on violence against children; Professor Manfred Nowak, former UN Special Rapporteur on Torture, former member of the Working Group on Enforced Disappearances; Judge Theodor Meron, former president of the International Criminal Tribunal for the former Yugoslavia (ICTY), Judge on the Appeals Chambers of the International Criminal Tribunal for Rwanda and the ICTY; and Judge Philippe Texier, Judge, Cour de Cassation, France, member (and former Chair) of the UN Committee on Economic, Social and Cultural Rights, and Commissioner at the International Commission of Jurists.

The speakers noted that, under the existing human rights system, Asia was problematic because unlike Europe and South America, there was no regional human rights court. They therefore proposed that the UN return to the idea, first debated by the UN in 1947 but put on hold because of the Cold War, of establishing an International Court of Human Rights as “the final guarantor of human rights”.

In her address to the meeting, the Maldives Ambassador Iruthisham Adam said that it is vital, in countries suffering systematic human rights abuses, that individuals have recourse to effective remedy at international level.

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Forty percent of women between the age of 15-25 are unemployed, says HRCM

The Human Rights Commission of the Maldives (HRCM) has published a report revealing that more than two thirds of the Maldivian population are unemployed, with only 110,000 of the country’s 350,000 population holding paid jobs.

Women are particularly affected, HRCM noted, with women holding only 37 percent  of those jobs. Forty percent of women between the age of 15-25 are unemployed, HRCM stated.

Of the 124 senior government positions, women filled 28 positions, HRCM noted. Females also hold 12.5 percent of roles in independent commissions, 3.85 percent in parliament, 1.9 percent in the judiciary, 2.3 percent in the military, and 1.6 percent in the police force.

“The government should give high priority to training [women] and conducting awareness programs to make women more active in employment,’’ said HRCM. ‘’It is necessary that there are job opportunities for females in the islands and opportunities for females to train for jobs at atoll and island level.’’

“Our goal is to establish a society where women and men are equal in civil, political, economic, social and cultural fields. The commission calls on everyone to give women equal opportunities in every area of life.”

HRCM also noted that women were outperforming men at school, but this was not reflected in their employment or positions in society.

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Runaway judiciary leaves the Maldives “at a dangerous junction”, says Velezinee

The Maldives is at “a dangerous junction” following the publication of an in-depth report into the state of the country’s judiciary by the International Commission of Jurists (ICJ), says President’s Member of the Judicial Services Commission (JSC) Aishath Velezinee.

The report was released this week following a visit by an ICJ delegation that included former UN Special Rapporteur on the Independence of Judges and Lawyers, Dr Leandro Despouy. It urged the provision of institutional and individual support for judges and magistrates in the Maldives, foreign oversight and assistance, and highlighted judicial accountability as “the key to cultivating public confidence [in the judiciary]”.

The report was especially critical of the JSC, “constitutionally established as an independent and impartial body tasked with vetting non-Supreme Court judges and magistrates.”

The JSC, the report said, “was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner. To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment. Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”

The JSC has refused to even table the report, Velezinee said on Thursday.

“We have not been given the opportunity to discuss the report in the JSC,” she said.

“The first thing is for those members exposed as not up to the conduct required by JSC to seriously think about resigning. Number two – we need to table the ICJ report and discuss it. But they have shown no interest in doing so.”

The ramifications of not doing this meant that the Maldives  had “a runaway judiciary”, Velezinee said.

“There has been very public resistance from JSC to any sort of democratisation of the JSC. I’m afraid the people are fooled – the constitution promises an independent judiciary and JSC, which would ensure judges are impartial and independent. But the JSC never institutionalised itself as an independent institution.”

The ICJ had managed, Velezinee said, “to put together a clear picture drawing from the little documentation that was available to them.”

“A lot of very political opinions were shared with them by stakeholders, and they would have had to be really vigilant to not be taken in by the politics of it,” Velezinee said.

“I think the challenge for them was that almost all the documentation is in Dhivehi and not available publicly. Considering the difficulties they had getting information and the very political situation we are currently in, I think they have done an excellent job.”

Situation at hand

Under the constitution the next step forward would be for the Majlis (parliament) to act as the independent oversight body and “put the JSC on trial”, Velezinee said.

“But every time controversy in the JSC becomes public the Majlis intervenes – not in a way that holds JSC accountable, but with the sole objective of covering JSC’s misdeeds. Right now the parliament has a three-member subcommittee conducting a secret investigation of JSC – these are meetings that are closed door [and not public knowledge].”

Parliament, Velezinee contended, had failed to hold the JSC to account and had resisted reforming the watchdog body.

“The parliament is together with the judiciary on this – certain influential members of parliament would like to maintain the status quo so they can control the judiciary,” Velezinee said.

“This is not such a far-fetched radical thought coming from me any more because of the things we have seen over the last year to do with politicians and judicial action. The courts are a playground for politicians and are not trusted by the general public.

“Parliament has failed, and there is no other institutional mechanism in this constitution for the JSC to be held to account.”

It was, Velezinee said, in the interests of everyone, including the international community and the state, “to ensure that the constitutional provisions to establish independent judiciary are followed to the letter and in spirit. We have failed to do that.”

The reason for that failure, she suggested, was a fear among leaders of the former administration “who are continuing with criminal activities they have allegedly been carrying out for a long, long time. These are allegations only because they have never come up before a court of law in all this time.

“There is widespread public perception that certain members of parliament are behind all the serious organised crime going on in this country. This includes serious drug issues, gang violence, stabbings. It is a much discussed issue, but it has never come up in the courts. I can see now that perhaps it may be true – otherwise why prevent the formation of an independent judiciary? I don’t think they would have confidence that they would get away free.”

Velezinee observed that former political figures such as attorney generals were now representing these MPs in court as their lawyers, and by and large, “they win every case.”

“I would find it an insult if had to go and argue my case before someone who does not understand the law. Why are these people doing it? On some islands the parents are locking up the primary schools if the teacher is not qualified. Why are we content with people who have not completed primary school sitting on the bench and judging us?”

Deep-rooted cultural issue

Many of the problems now embedded in the Maldives and its institutions can be traced to the fact that the country never had the opportunity to acclimatise to the concept of democracy before it was introduced, Velezinee suggested.

“For the last two years I have done nothing but think about this and try to change the JSC. I have spent hours and hours by myself thinking this through.

“What I think is this: when a student from a developing country goes to a university in a developed country, you go through an orientation process. If you live in the developing world and you go to work in the third world as a volunteer you also go through orientation – it’s to prevent culture shock.

“We just woke up one day to a new culture. We have always had this culture of subservience, of submissiveness where you are taught to respect your elders – certain people who have been shown to you as the leaders. Then suddenly we adopted this constitution that says everyone is equal.

“I think what people have found as my brazenness is that I have dared to publicly criticise the Speaker of Parliament and senior judges. They do not understand that I am equal to them as a member of JSC – the concept is completely lost on them.”

For the past 30 years judges effectively worked as the employees of those “hand-picked” by the former government, Velezinee explained – to the extent that failures to extend a particular ruling as required by the then Ministry of Justice resulted in a black mark on the judge’s file.

“The only qualification it appears was a willingness to submit to the will of the government at the time – to follow orders,” Velezinee said.

“Not everyone has the mindset to follow orders and serve in that kind of capacity. I believe it has excluded people with independent thinking, or the necessary legal knowledge – such people would take it as an insult for someone to order them how to decide a case.

“Now the JSC has decided – I believe with the support of parliament – that the same bench will remain for the next 40 years, retitled as an ‘independent judiciary’.”

Download the ICJ’s report, ‘Maldives: Securing an Independent Judiciary in a Time of Transition’ (English)

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NGO aid overdependence may hamper effective national development, says UN coordinator

The high number of NGOs operating in the Maldives dependent on foreign aid may be setting back effective development in areas such as health and human rights, according to UN Resident Coordinator Andrew Cox.

At the launch of a new wave of UN joint funding, Cox told Minivan News that he believed current numbers of Maldivian NGOs “could not be sustained” with about 700 such organisations registered within the country.

Cox claimed that the funding unveiled today was being supplied in an attempt to steer future aid projects into specific areas of interest in the community where NGOs could effectively support and maintain themselves to benefit local people in the long-term.

A total of nine grants, which are jointly funded by the UN (UNDP) Development Project and the Australian Agency for International Development (AusAID), were today unveiled as part of the first of three batches of funding to support projects by NGOs and civil society organisation (CSOs).

The projects, which range in budget and duration from four to eight months, are aimed at encompassing issues such as human rights, governance, rights-based developments and gender equality, according to the UNDP.

Although not related directly to this weekend’s council elections in terms of timing, Cox said that the focus of the local elections to transfer a strong amount of governing responsibility to islands and atolls away from Male’ tied into the grants’ intended purpose of steering country-wide developments.

“The point of today is we can see that civil society organisations and NGOs can play a major role in bringing meaning to this transfer of power from the centre to the local level. Obviously that is not going to happen on every island or even every atoll,” he said.

“But community organisations; working with some of the most disadvantaged and trying to give them poise is a key part of what local democracy is about. What I really want to see coming out of these grants and the ones which come along in the future is more of the same kind of thing.”

Grant beneficiaries

The list of beneficiaries of these grants includes:

• Take Care Addu; received US$20,514.98 to try empowering NGOs to protect and promote human rights on Seenu Atoll and Fuahmulah for seven months

• Maldivian Democracy Network; received 18,815 to monitor political violence for the first local council elections over four months

• Maldives Deaf Association – in collaboration with Care Society; 24,928 over eight months to help create awareness of the United Nation’s convention on rights of people with disabilities

• Raajje Foundation Maldives; US$20,980 on a six month project looking at civil society and democracy to be implemented in two atolls

• Maldives Civil Servants Association (MCA); provided US$21,151 for funding five month projects in Male’ and other atolls

• CHOCO; US$18,400 for six months development of a “masterplan” for Huvadhoo Atoll

• Lhohee Zuvaanunge Club; received US$15,347 for the raising of public awareness of local governance and empowering women in Noonu Atoll

• Billedhoo School Isdharivarunge Jammiyya; provided US$15,634 for protection of women’s rights and their role in political and social spheres for a four month project

• HIRIYA; US$14,340 for a four month project aiming to strengthen the role of women youth leaders

According to Cox, the projects, which were selected by the UNDP’s own Grants Gommittee were geographically focused to try and benefit as wide a group of people as possible.

In terms of monitoring the aid, Cox said that the grants committee had focused on trying to find key long-term areas that future funding could efficiently support in the country without depending on continued foreign aid.

“The applying organisations had to show that this is a way of not just blowing off some cash, but that this might strengthen things in the area they are focusing on,” he said. “We’ll have to see how it goes, but if we see some useful trends coming out of this we will try and steer the remainder of resources towards this.”

When asked whether potential suspicion from some people or groups over the motives of international bodies such as the UN and AusAID in supplying financial aid was a problem, Cox claimed that he had not heard of any such criticisms of the Society Development Project funding.

In addressing prominent concerns in supplying the funding, the UN Resident Coordinator said that ensuring long-term benefits from the aid packages was particularly important due to the high number of NGOs currently operating in the country, which he claimed could not be sustained on current national levels of financial resources.

“In the long run, especially in a country like the Maldives, you can’t have NGOs that are dependent on international funding because it won’t continue forever,” he said. “So the idea of projects like this, at least in theory, is that you can provide funding for very particular activities and you hope that the resources that provides allows for professionalization to help develop stronger management structures.”

One possible solution to concerns over an over dependency on foreign aid according to Cox could be the emergence of a number of “champion” or strong NGOs focusing on a number of “key issues” like reproductive health, drugs and human rights.

“One of the things we try and push NGOs to do – which can be a difficult sell – is to look to their own communities and the people who support them to find the reasons they exist and find ways that resources can be mobilised nationally and locally,” he said. “On a secondary level, you need a number of organisations to hold the government accountable, it happens in the UK, it happens in Sri Lanka and slowly it is happening here.”

In practice though, Cox said that such changes were beginning to be seen in the Maldives, but added that they would still take some time to develop.

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Comment: HRCM and Islamic Sharia

On October 26, 2010, I came across one of those unforgettable headlines in a local news source, that has left me thinking about it ever since.

The headline on Miadhu read: “Human rights protection can be successfully achieved adhering to the principles of Islam – HRCM President.”

I read it over and over again before I came across a quote under the headline. It was from Mariyam Azra Ahmed – the President of the Human Rights Commission of the Maldives. She said: “Human rights or its key principles could be incorporated into all our works and our day to day activities; if we don’t go against the tenets of Islam in doing so”.

For a moment, I could not understand what she was trying to say. Her words suggested that HRCM – the highest authority to safeguard human rights in the country has joined the religious narrative that poses a clear threat to human rights, social justice and economic sustainability of the country.

I am aware of the first objective of HRCM as outlined in the Human Rights Commission Act 6/2006. It says: “to protect, promote and sustain human rights in the Maldives in accordance with Islamic Shari’ah and the Constitution of the Maldives”. But I am quite assured that if HRCM engages within the confines of Islamic Sharia, as it is understood now, we could be a long way from protecting and sustaining human rights in the Maldives.

I take the words of HRCM President very seriously for three specific reasons.

Firstly, in Maldives, what is “Islamic” and what is “not Islamic” is widely dictated by the likes of the Adhalaath Party, a few religious NGOs, and certain Parliamentarians who use religion for public appeal.

Secondly, if the Ministry of Islamic Affairs – dominated by the Adhalaath party – defines Islam, by default they are also determining human rights for HRCM, thereby creating a conflict of interest.

Thirdly, despite the first objective of HRCM, it has not taken any steps to examine Islamic Sharia or create alternative religious interpretations that differ from the existing religious narrative in human rights related issues.

On October 10 I was slightly alarmed when I heard the State Minister of Islamic Affairs Sheikh Mohamed Shaheem Ali Saeed speaking on a local TV channel, saying that Islamic Sharia is a “divine revelation” from Allah. More mainstream Islamic scholars clearly take a different thread of interpretation.

For example, Abdullahi Ahmed An-Na’im – an internationally recognised leading expert on religion and law and a human rights activist – does not seem to believe Islamic Sharia is divine. An-Nai’m is a prominent authority on Islamic law and theology and on diverse Islamic societies in Africa and Asia.

“Sharia developed through the consensus of believers over many centuries and not by the spontaneous decree of a ruler or will of a single group of scholars,” An Nai’m said in his paper: Secularism from an Islamic Perspective: Theoretical reflections on the realities of Islamic societies in the 21st century.

He said, “The first several generations of Muslims did not know and apply Sharia in the sense this term came to be accepted by the majority of Muslims”.

An-Nai’m said the primary sources of Islamic Sharia are the Quran and Sunnah as well as the general traditions of the first Muslim community of Medina (622 CE). Islamic Sharia, he said, also includes consensus (ijma), reasoning by analogy (qiyas) and juridical reasoning if there is no applicable text of Quran or Sunnah (ijthihad).

“But these were matters of juridical methodology for developing principles of Sharia rather than substantive sources as such,” An-Nai’m continues saying, “That process was entirely based on the understanding of individual scholars of these sources, and the willingness of specific communities to seek and follow the advice of those scholars.”

An-Naim further said that the more systematic development of Sharia began with the early Abbasy era (after 750 CE) and came with three major developments – the emergence of the major school of thought (madhhab), the systematic collection of Sunnah as the second and more detailed source of Sharia, and the development of Juridical Methodology (Usul al-fiqh). These developments, he said, took place 150 to 250 years after the Prophet’s death.

He also said “while the Quran and Sunnah are the divine sources of Islam according to Muslim belief, the meaning and implementation of these sources for everyday life is always the product of human interpretation and action in specific historical context.” He said it is impossible to know and apply Sharia in this life except through the “agency of human beings”.

According to An-Nai’m there has not been any change in the basic structure and methodology of Sharia since the tenth century. But in the Maldives, in this 21st century, the Adalaath Party and the religious NGOs are actively engaged in a “bottom up” approach to create a culture to enforce Islamic Sharia and convert the Maldives into an Islamic Caliphate.

An-Naim suggests that an Islamic State that imposes Sharia is not conducive to protect human rights as it contains the features of a dictatorship.

“Political activists who call for the establishment of an Islamic state to enforce Sharia through legislation and official policies are in fact calling for a European Marxist view of the state,” he said, “that is, they seek to enforce Sharia principles through the coercive power of the state, not the moral authority of the religious doctrine, and to control the state in order to transform society on their own terms, instead of accepting the free choices of persons and communities.”

While the state is a political institution that cannot have a religious faith, whatever is enforced as Islamic policy and law will necessarily reflect the views and interests of the ruling elite according to An Nai’m. “It will force the people to live by the ideological vision or narrow self-interest of the ruling elite”.

Furthermore, if traditional interpretations of Sharia are maintained, it is impossible for Islamic societies to invest in the rule of law and protection of human rights in their domestic policies and international relations, he said.

As we can see, there is a lot more we can learn about Islamic Sharia and the related wider debate, by examining studies such as that of An Nai’m.

Meanwhile, if the HRCM feels their sole duty is to guarantee the 53 fundamental rights and freedoms enshrined in Chapter 2 of the Constitution they are far from fulfilling their national obligations. If HRCM is serious about protecting human rights, it is time for them to face the fundamental questions of interpretation and debate, as it is what has led to the emergence of Islamic Sharia in the first place.

“Freedom of dissent and debate were always essential for the development of Sharia itself because it enabled consensus to emerge and evolve around certain views that matured into established principles through acceptance and practice by generations of Muslim in a wide variety of settings,” An-Nai’m said.

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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Women’s rights and treatment of migrant workers needs improvement: UN review

The Maldives should take steps to address the rights of migrant workers and improve on issues relating to women’s rights, matters among 130 recommendations for the Maldives made by other UN member states at the Universal Periodic Review (URP) held in Geneva on November 3.

The Universal Periodic Review is a state-driven process that reviews the human rights records of all 192 UN member states every four years, based on submissions by the government, the UN and stakeholders (including NGOs and a country’s Human Rights Commission).

Eleven states recommended that the Maldives seek to improve its treatment of migrant workers, while seven states, including Algeria, Mexico, Palestine, Slovenia, Bosnia-Herzegovina, the Philippines and Ecuador recommended that the Maldives ratify the International Convention on the Protection of the Rights of Migrant Worker and Members of their Families (ICPMW).

The Maldives was this year placed on the US State Department’s human trafficking watch-list, with exploitation of foreign workers rivaling fishing as the second most profitable sector of the Maldivian economy after tourism, according to conservative estimates of the number of Bangladeshi workers showing up at their commission in Male’ after being abandoned at the airport by unscrupulous employment agents.

Furthermore, according to information from the Maldivian Democracy Network, 23 member states recommended the Maldives take steps to combat violence against women, and remove its reservations to the Convention of the Elimination of all Forms of Discrimination Against Women (CEDAW), as well as combat traditionla stereotyping of women through education and legislation.

Child rights were also discussed, and 14 states recommend that the Maldives improve legislation to ensure the rights of children born out of wedlock, withdraw reservations to the Convention of the Rights of the Child (CRC), prevent underage marriages and the practice of having concubines, and expedite the passage of the Juvenile Justice Act.

At the Working Group Session 49 states offered suggestions, including strengthening the independence of the Human Rights Commission (HRCM), criminalising human trafficking, strengthening the judiciary, developing a professional code of conduct for judges and providing training in human rights, increasing efforts to end discrimination against people with disabilities, and ensure that the new Penal Code was consistent with human rights.

UN member states noted particular progress in the Maldives in areas such as freedom of expression, freedom of association and assembly, the right to vote and to choose one’s leaders, and torture prevention.

However areas of particular concern were identified as women’s rights, children’s rights, freedom of religion, penal reform, judicial reform, and the practice of public flogging.

Foreign Minister Dr Ahmed Shaheed, who presented the government’s UPR report, said he “had come to Geneva to listen and discuss, rather than to defend”, and was keen to take the recommendations of the international community back to the Maldives.

Dr Shaheed identifed the 10 greatest human rights challenges facing the Maldives as dealing with past human rights abuses while not putting the future at risk, democratic consolidation, strengthening the rule of law and fighting corruption, improving law and order and strengthening the capacity of the judiciary, promoting gender equality, responding to extremist religious views, and dealing with drug abuse and related criminality.

Overall, member states noted that the Maldives had made “remarkable progress”, and commended the enthusiasm with which the Maldives had compiled its submission, noting that the country remained one of the success stories of the international human rights system.

Dr Shaheed said the government would hold consultations on his return to the Maldives, and suggested a dedicated UPR debate be held in parliament as well as a cabinet session and public hearing.

“A few years ago it would have been inconceivable that a liberal democratic Maldives, with a Constitution guaranteeing the full enjoyment of human rights, would have been represented here on this podium. That we are here is down, without any doubt, to the bravery, vision, belief and determination of the Maldivian people. Whatever happens in the future, it is my firm view that what they have achieved over the past few years is truly remarkable,” Dr Shaheed said.

Read the Maldives’ UPR submissions (English):

Government, UN, Stakeholders (includes HRCM)

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