Tag: jeehan mahmood

UPR report shared with judiciary before submission, says HRCM at Supreme Court trial

The Human Rights Commission of Maldives (HRCM) shared its Universal Period Review (UPR) report with the Department of Judicial Administration (DJA) and sought feedback ahead of submission to the UN Human Rights Council, the commission’s lawyer told the Supreme Court today.

The DJA – which functions under the direct supervision of the Supreme Court – did not respond to the request for commentary on the report or object to its content, the lawyer noted at the first hearing of the trial.

All five HRCM members are on trial after the apex court initiated suo moto proceedings in relation to the UPR report, which suggested that the Supreme Court’s control over the judiciary was undermining powers of lower courts.

At the beginning of the hearing, Chief Justice Ahmed Faiz Hussain reportedly said that the HRCM’s report contained false and misleading information concerning procedural matters of the judiciary.

The suo moto proceedings – which allows the court to act as both prosecution and judge – were initiated to hold the commission’s members accountable under Article 141 of the Constitution, Article 9 of the Judicature Act, and Supreme Court regulations, the chief justice said.

Article 141(b) states, “The Supreme Court shall be the highest authority for the administration of justice in the Maldives.”

Article 141(c) states, “No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts,” while section (d) states, “Persons or bodies performing public functions, through legislative and other measures, must assist and protect the courts to ensure the independence, eminence, dignity, impartiality, accessibility and effectiveness of the courts.”

The commission’s attorney Maumoon Hameed explained that each UN member state was required to submit a report for the UPR.

The UPR is a state-driven process that reviews the human rights records of all 193 UN member states every four years, based on submissions by the government, the UN, NGOs and human rights commissions. The Maldives’ review is scheduled to take place in April or May 2015.

In a press release today, the HRCM said it submitted as evidence information regarding the UPR process as well as commentary received from various state institutions.

“At today’s hearing, the commission requested an opportunity to submit further information and evidence,” the press release stated.

“The Supreme Court adjourned today’s hearing. The commission has not yet been informed of a date for the next hearing.”

The next hearing has since been scheduled for 1:30pm on Sunday, September 28.

Noting that Supreme Court decisions could not be challenged as it was the highest court of appeal, Hameed had, however, asked for five working days to prepare a defence.

Control of judiciary

Less than two weeks before the parliamentary polls in March, the Supreme Court had charged Elections Commission Chair Fuwad Thowfeek and Deputy Chair Ahmed Fayaz with contempt of court and dismissed the pair under unprecedented suo moto proceedings.

Subsequent changes to contempt of court regulations made in June authorised courts to penalise individuals for any expression, action, gesture, or piece of writing “inside or outside a courtroom” that could be considered contempt of court.

Meanwhile, in a press statement yesterday, the opposition Maldivian Democratic Party noted that under Article 27 of the HRCM Act a case could only be filed against the commission regarding published reports following an inquiry which proves components of the report to have been false.

In its UPR report, the HRCM stated that the Supreme Court’s control of the judiciary was weakening judicial powers vested in lower courts.

“Supreme Court issued a circular ordering all state institutions not to communicate to individual courts regarding any information relating to the judiciary except through the Supreme Court. HRCM is facing difficulties in gathering information related to judiciary due to lack of cooperation,” the report stated.

Moreover, the report noted that “due to shortfalls in judicial system, functioning of the judiciary is often questionable on various grounds including independence, transparency, interference, influence, competency, consistency, and accessibility.”

Through a raft of regulations enacted in recent months, the Supreme Court has sought to consolidate control over administrative affairs of the judiciary.

In a comprehensive report on the Maldivian judiciary released in May 2013, United Nations Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, wrote that centralising administrative decisions in the hands of the Supreme Court “has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes.”

The Maldives representative to the UNHRC subsequently accused the special rapporteur of undermining the sovereignty of the country.

Criticism of the Supreme Court’s role in the electoral process by United Nations High Commissioner for Human Rights Navi Pillay last October was meanwhile described as “ill-informed” and “irresponsible” by former President Dr Mohamed Waheed.

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Immigration detains 58 migrant workers in Laamu Gan

58 people were detained from Laamu Gan by the Department of Immigration and Emigration (DIE) yesterday as the government’s special operation to deport undocumented migrant workers continues.

“This operation will continue, that was the number of people we could transport yesterday. As soon as we get seats from a boat travelling to Malé, more people will be taken in,” said Laamu Gan Council President Ahmed Salah.

The council led the operation alongside the DIE, the Maldives Police Services (MPS), and the Maldives National Defence Force (MNDF).

“This [the operation] is good for the island and for the country as well. This will create a lot of job opportunities for Maldivians,” said Salah.

While the most common type of work conducted by immigrants on the island is agriculture and fisheries, some are engaged in other occupations such as masonry, odd jobbing, and working in restaurants. Maldivian laws prohibits both fisheries work and self-employment for expatriates.

Salah estimated there would be around five hundred migrant workers on the 5000-strong island, most of whom he suggested were undocumented, and some of whom had fled the island during the operation.

He also noted that some of the workers taken in during the operation had valid visas but were considered undocumented as they were either not doing the work their visas were issued for, or were working for a different employer.

Impact

The main reason for having such a large migrant worker population on the island was their low wage demands compared to what is expected by locals, explained Salah.

“People give them around MVR2000 [per month] and an additional MVR500 for food and provide them with accommodation. There are so many of them on fishing boats and doing agricultural work,” he added.

According to the council president, migrant workers rent houses with each of them paying around MVR150 each day – agricultural workers live in small huts built on their fields, and fishermen live on their boats.

Following the council’s recommendations on behalf of the public, DIE has agreed not to take any action against locals who employ undocumented workers, Solah said.

“People are employing migrant workers like this because the implementation authorities have allowed them to do so. So we are requesting immigration to at least not to fine them [local employers], and let this time be a warning and show some leniency. So no fine have been imposed on the employers,” he explained.

Prior to the current operation, the immigration department conducted a  voluntary repatriation program, offering leniency for undocumented migrant workers who wished to return to their home countries voluntarily at their own expense.

The current programme was announced in April by the Minister of Defence and National Security Mohamed Nazim – also head of the Immigration Department – who promised that “within three to four months the whole Malé will be cleaned”.

According to Nazim the priority would be to deport those detained in the operation as soon as possible.

Earlier this month 33 undocumented workers were detained as part of this nationwide action, although Minivan News was unable to obtain a comment from the immigration department regarding the operation’s specifics.

Human Trafficking

The Maldives was recently removed from the US State Department’s tier two watch-list for human trafficking after remaining on it for four consecutive years, narrowly avoiding international sanctions.

While the 2014 US State Department’s Trafficking In Persons (TIP) Report highlighted the recently enacted anti-trafficking law and the opening of a shelter for victims of trafficking, the report noted that there are “serious problems” in enforcing the law protecting victims.

Some of these problems highlighted in the report include lack of procedures to identify victims among vulnerable populations, and inadequate training for officials.

The report further stated that “the government penalized some victims for offenses committed as a result of being trafficked and also deported thousands of migrants without adequately screening for indications of forced labor.”

These concerns were echoed by Human Rights Commission of the Maldives (HRCM) Jeehan Mahmood.

“In the absence of victim identification guidelines it is very likely that victims of human trafficking would be taken in during such operations, because there is no clear way to identify if such a person is a victim or not,” she said.

Jeehan did, however, note that the anti-trafficking steering committee established under the new counter trafficking act had already drafted a national guideline of internationally accepted standards.

She highlighted the need to criminalise human smuggling along with trafficking, explaining that the HRCM has proposed to amend the law for this purpose.

“The two are very different, it is an issue of consent. So there should be a specific definition for this. It is very important for the State to understand this. And without a clear definition a victim of trafficking could be prosecuted for that,” she said.

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HRCM introduces benchmark for migrant worker rights

Coinciding with the International Migrants Day, the Human Rights Commission of the Maldives (HRCM) has launched a national benchmark for protecting migrant worker rights.

The benchmark was launched by HRCM President Mariyam Azra and Deputy Minister of Human Resources, Youth and Sports Naaif Shawkath at a ceremony held at Nasandhura Palace Hotel today.

Officials from various stakeholder institutions such as the Maldives Police Service and the Immigration Department were present at the ceremony, later taking part in a forum to discuss the utilisation of this benchmark in their work.

According to the commission, the purpose of having such a benchmark is to encourage protection of the rights of migrant workers and to provide a guideline highlighting the basic human rights principles to be followed.

It is based on the constitution of the Maldives, the Universal Declaration of Human Rights, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) and other human rights conventions to which the Maldives is a party.

While most of these standards are already obligations on the state, the benchmark itself is not something state institutions are obliged to follow, though the commission members noted the government’s willingness to accept it.

Speaking at the launching ceremony, commission member Jeehan Mahmood said she hoped all institutions would use it as a tool for protecting the rights of migrant workers. She noted the positive response from these institutions in meetings held within past few days to discuss the benchmark’s use in their work.

Advising the government in “formulation of laws, regulations and administrative codes concerning the promotion of a high regard for human rights and the protection and sustenance of such rights” is stated as a key function of the commission in the Human Rights Commission Act.

Speaking at the benchmark launching ceremony Deputy Minister Naaif advised all relevant institutions to accept the benchmark, and thanked HRCM for developing it. He said following it will standardise the work of all institutions.

In a press release issued today, the HRCM called on the state to facilitate implementation of  the recently ratified Anti Human Trafficking Act and reiterated their call to ratify and implement ICRMW as as soon as possible. The Maldives has agreed to ratify and implement this convention on various occasions.

The HRCM has cited the issue of healthcare as major challenge for undocumented migrant workers living in Maldives. According to a video presentation given at the ceremony, such workers hesitate to see a doctor even if they can afford to.

The video also showed that, out of all complaints submitted to the commission regarding rights of migrant workers, 68 percent of cases involved non-payment of wages, unfair expulsions, and the failure to provide food and shelter. 18 percent of cases were said to concern health issues while in detention.

Among other complaints received by the commission are the withholding of travel documents and work visas, refusing leave from work, and the termination of employment contracts without prior notice.

While there is no accurate official figures of the migrant worker population in the Maldives, the highest estimates suggest that it crossed the 100,000 mark in 2011, whilst the number of undocumented migrant workers have been placed as high as 44,000.

These numbers indicate that migrant workers might now represent more than one third of the total population.

The country was this year kept on the US State Department’s Tier Two Watch List for Human Trafficking for the fourth consecutive year, with promises that demotion to the third tier would be guaranteed in 2014 without significant progress being made.

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Anti-trafficking act greeted with caution by HRCM

The Human Rights Commission of Maldives (HRCM) has welcomed this week’s ratification of the Anti-trafficking act, despite reservations about the legislation itself and the state’s capacity to enforce it.

“It covers many acts of exploitation that will now be considered as offences and it also has penalties in the act for those who commit the crime of human trafficking,” said HRCM member Jeehan Mahmoud.

Earlier this week, the government announced the ratification of the bill, which had been passed in the Majlis on December 3.

Assistant Controller Ali Ashraf has also described the new legislation as “an excellent piece of work”

A President’s Office press release stated that the new legislation clearly defined human trafficking as an offence in the Maldives.

The main objectives of the Anti-Human Trafficking Act were subsequently listed as:

• Preventing trafficking of persons through and across the Maldives

• Establishing the crimes of trafficking in persons and prescribing punishments

• Providing for prosecution of perpetrators of trafficking in persons

• Providing protection and assistance to victims of human trafficking

• Promoting and protecting the human rights of trafficked victims

• Engaging in cooperation with local and international NGOs working against human trafficking

Those found guilty of human trafficking can now face up to 10 years for cases involving adults, which can be extended to up to 15 if children are involved. Accomplices to trafficking can also now receive a seven year sentence.

Both Jeehan and Ashraf, however, maintained reservations regarding the efficacy of the act in the absence of specific definitions of offences and in its failure to include human smuggling.

“We wanted to identify specific acts. In our experience, if specifics are not detailed there is a chance that the offences go without prosecution when they get to the courts,”said Jeehan.

Similarly, Ashraf noted that the failure to include the category of smuggling in the act – different to trafficking in that individuals give a measure of consent to be transported illegally – made it very likely that offenders will be able to evade prosecution.

“The definition of trafficking can be twisted so easily,” warned Ashraf.

Jeehan noted that those smuggled were as vulnerable to exploitation by their handlers as those trafficked.

International pressure

In ratifying the bill, President Yameen has fulfilled one of the recommendations given by the US State Department earlier this year to avoid a downgrade to Tier 3 – the lowest rung on the department’s scale.

Relegation to Tier 3 is reserved for states who are neither meeting the minimum requirements to eliminate trafficking, nor are making concerted efforts to do so. The State Department revealed  in June this year that, despite being spared the downgrade to Tier 3 this year, the country would be ineligible for such a reprieve in 2014.

US diplomat Luis CdeBaca – speaking at the launch of the US’s most recent human trafficking report – said that the guarantee of a downgrade had been introduced to prompt action in countries who had been “getting comfortable being on Tier 2 Watch List, doing a minimum amount.”

Jeehan argued that such international pressure had played a “key role” in paving the way for the new legislation, expressing her belief that the move will be viewed positively by international observers.

The Maldives’ downgrading from the Tier 2 watchlist – where it has remained for four years – could potentially leave it open to non-humanitarian and non-trade international sanctions.

A government-ordered report in 2011 revealed human trafficking to be the Maldives second most lucrative industry after tourism – worth an estimated US$123million a year.

The Maldives expatriate worker population is estimated by some sources to be as high as one third of the population with the majority coming from Bangladesh. Bangladeshi authorities temporarily halted worker migration to the Maldives earlier this year in order to check on worker eligibility.

Under the previous government, the Immigration Department had targeted the return of 10,000 unregistered workers by the end of 2013.

Institution building

Jeehan today noted that much work was still needed to build the capacity of state institutions in order to adequately fight trafficking.

“Very little has been done to build the capacity of state officials to counter human trafficking. One thing definitely needed is to build the capacity of state institutions,” said Jeehan.

The capacity of the country’s border control infrastructure to adequately deal with trafficking has been questioned in recent months, following the decision of the previous government to replace border control system offered by Malaysia’s Nexbis company with the US PISCES system.

During the legal wrangles that dogged the Nexbis deal from its initial agreement, the company’s Vice President suggested that groups backing the country’s lucrative human trafficking industry could be seeking to stymie the introduction of its BCS to undermine national security controls.

Ashraf stated that the capacity to meet the requirements of the new legislation was there, but that a number of amendments would be needed to make it fully workable – including special visas for trafficking victims.

“Implementation of the bill will require a lot of effort and coordination,” he added, revealing that the Department of Immigration, alongside the International Organisation for Migration, would be holding a training session for all immigration officials on December 15 for this purpose.

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