Tag: UN

UN Special Representative calls for abolition of degrading and capital punishment against children

The United Nations Special Representative of the Secretary General on Violence Against Children, Marta Santos Pais, has called on the government to find an alternative for, or abolish, capital and degrading punishment against minors.

Pais made the comments at a press conference held on Wednesday, together with Acting Minister of Gender, Family and Human Rights Azima Shakoor, at the conclusion of a six day visit to the Maldives to “support national efforts to address concerns” about the case of a 15 year old female rape victim sentenced to a 100 lashes on charges of fornication.

“My visit was sped up because of the case of this 15 year-old. As you know, the whole world is following this very closely with concern, for a number of reasons. The most important one is that we are talking about someone who is very young, who has been the victim of a sequence of situations that are very traumatic, and which has certainly affected her well-being. And which should not put at risk the way she looks at her future,” Pais stated.

“We have been concerned naturally about the opportunities that seem to have been missed in the process, in the first stages of the judicial procedures that were carried out. At the same time we feel encouraged by the fact that not only were there expressions of condemnation by the President, the government and the Maldivian civil society, but there is an appeal for her now,” she continued.

“We are very confident that the situation will be globally assessed in the light of the best interests of the child, and the assumptions made about the capability of a girl of 15 years of age to channel such decisions about one’s life will be taken into consideration,” Pais said.

“In her case, as well as the other case mentioned of capital punishment, as you know, there is a very important trend across the world. The first is to recognise that the Convention on the Rights of the Child and other international treaties in fact consider that these forms of sentencing are not in conformity with human rights. And these are treaties ratified by the Maldives, and as you know, the Constitution of the Maldives recognise the primeness of these, providing guidance to act in line with these treaties including when courts are applying or interpreting laws and constitution,” the Special Representative continued.

“And secondly there is a trend visible in many countries, including muslim countries, to abolish this form of sentencing and also to find alternatives to deal with children and young people who are in such situations. So we are very hopeful that these options will be taken under consideration in Maldives in these particular cases, and other similar cases that may come up,” she stated.

Former Attorney General and Acting Gender Minister Azima Shakoor admitted that “there were a lot of misses in the 15 year old’s case”, adding that the matter could have been better handled if the state had acted earlier, and if the necessary systems were more strongly built.

Action by the state

The Special Representative welcomed the establishment of a Child Protection Committee by President Mohamed Waheed Hassan, noting the importance of pushing for change to prevent similar cases from happening again, calling the girl’s case a “paradigmatic of the wider situation of violence against children.”

Pais said that she had conducted discussions with government officials, parliamentarians from across the political spectrum, other political actors, members of the judiciary, national institutions and relevant civil society organisations during her brief visit.

While noting that she had observes a common “reaffirmation of the international commitments undertaken by the Maldives to safeguard the rights of the child and ensure the implementation of the CRC” and other ratified conventions, she added that the country “now has before it a critical opportunity to translate these commitments into tangible legal, policy and programmatic action”.

Pais also emphasised that “incidents of violence still remain hidden and concealed, and are sensitive to be raised as a public concern, and difficult to report.”

She noted that in the recent past, significant tools and studies have been developed to address cases of violence, abuse and exploitation, including pieces of legislation like the Domestic Violence Act.

“Steady action is of essence”

Special Representative Pais said that despite the current action being taken by the state, a lot more steady action needs to be taken in the country to protect the rights of the child.

She recommended that awareness campaigns be carried out to prevent social acceptance of violence against children. Additionally, she stated that it is crucial to focus on capacity building programmes for teachers, social workers, law enforcement officials, judges, prosecutors and other child protection actors as they are in a unique position to safeguard children’s protection from violence and intervene in case such incidences occur.

Also among her recommendations is the importance of building upon the country’s Constitution and passing progressive legislation for the protection of human rights and children’s rights.

“It is imperative to improve in the legislation a clear legal prohibition of all forms of violence against children, including in the home, in care and justice institutions, as well as a form of criminal sentencing,” Pais stated.

In conclusion, Pais referred to the upcoming September 7 presidential elections, and called on all political actors to refrain from involving children in politics and from sidelining children’s right issues.

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New UN Resident Coordinator to Maldives commences tour of duty

The new UN Resident Coordinator and Resident Representative of the United Nations Development Programme (UNDP) in the Republic of Maldives, Tony E. Lisle, has today officially begun his tour of duty in the country.

Lisle’s main task will be to oversee national development programs by collaborating with the various UN agencies operating in the country, a spokesperson for the organisation told Minivan News today.

The new resident coordinator, who has been serving within the UN since 1996, previously held the position of Country Director for UNAIDS in Vietnam.

Lisle’s mandate as resident coordinator is expected to last for between four to five years, according to the organisation.

Lisle replaces former UN Resident Coordinator Andrew Cox, who completed his tour of duty back in January of this year.

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The culture of flogging in the Maldives: a systematic abuse of human rights

The Maldives is a tourist paradise, crowned the World’s Most Romantic Destination during the World Travel Awards in 2011. But while a popular destination for couples around the globe, it takes a radical paradigm shift when it comes to its own citizens.

Under the 2008 Constitution the Maldives is a ‘100 percent’ Muslim country, with a justice system based on a hybrid of common law and Islamic Sharia.

Although the country does not implement many of the ‘Hadd’ or penalties prescribed by Sharia law, including amputation and stoning, it does practice some selective punishments.

One such penalty is the implementation of flogging for a number of crimes including, but not limited to, fornication outside of wedlock.

In recent days, global media attention has been drawn to the case of a 15 year old-girl convicted of fornication and sentenced to flogging, despite her history of alleged sexual abuse dating back to 2009.

Minivan News has spoken with a number of locals about their experiences with flogging, and the societal impact it has had in the past.

Faheem*, a 47 year old former court official in a small island in the North of the Maldives, shared his experiences in regard to related cases.

“In my 10 years serving as a court official during the 90’s, I have witnessed many people being subjected to public flogging. Although we are, in fact, a Muslim nation, most of these sentences were for cases of extra marital sex,” Faheem said.

“The majority of those who did get flogged were women. Although Islam specifically states that once a culprit has endured the ‘Hadd’ he or she is completely washed of their sins, society does not seem to see it in that way.

These women are tainted for life and forever looked down upon. There were a couple of men too, but the islanders did not react in the same way against the men. They seem to be more easily accepted back into society, their sins are generally forgiven or forgotten in time,” he explained.

“We usually used a paddle, and there were then, like now, specific regulations which the flogger had to adhere to. But there is one particular case that has stayed in my mind, and although I was not directly involved in it, I have always remembered it with a pang of guilt,” he continued.

“The magistrate at the time, Ghazee Zubair, was involved with a woman from our island. Then one day he had to preside over a case against this woman, who had been brought in front of him for charges of extramarital, consensual sex with yet another man,” Faheem said.

“I remember islanders talking about whether he would be impartial in his judgement. He was, to a point. Yes, she was sentenced to flogging. But, the appalling thing is that while all others got the paddle, she was given a hundred lashes with a cotton handkerchief,” Faheem said.

While the paddle is commonly used in the implementation of flogging, it has been replaced with less harsher tools in some cases.

Hussain Haleem, a former court official, said in the past there have been instances where objects such as peacock feathers have been imported for the sole purpose of flogging a woman belonging to the country’s elite, or a single lash with a string of 100 rosary beads, each bead counting as a separate lash. Haleem, however, added that there had been cases in the other extreme, where the flogger has used far more force than is required, causing serious physical harm to the person sentenced.

Court officials attempt to gather a crowd of onlookers when the sentence is being implemented, in a bid to increase the shame of the sentenced persons. People standing around the court building, or waiting to file documents or cases, are frequently asked to join the crowds.

Shame and humiliation

Ibrahim*, a 44 year-old civil servant, talked about growing up as the illegitimate child of a woman who had been flogged.

“It was hard. Mother, who has since passed away, did not come from as elite a family as the man who they say is my father. She was the youngest daughter of a carpenter, a woman with no education, no money and no social status,” he said.

“As a teenage girl, she worked as a maid to help support the family. It was at this house where she worked that I was conceived. Of course, the man involved was rich and well, untouchable, even by the justice system.He denied any involvement and got off scott-free.

“I don’t refer to him as my father. I have never exchanged a word with him. My mother, however, was lashed. She told me that she herself had confessed, saying as per Islam, she deserved to get shamed, to bebeaten for her sin. Her family was so ashamed of her that she was turned out of the house.

“She lived till her late fifties alone, except for me. Growing up with a woman labelled undeservingly as cheap and honourless was not easy. This place is small and everyone calls me a bastard behind my back. That is probably why I have never learned to smile much,” Ibrahim said.

Twenty-six year-old marketing professional Fathima* spoke about how she felt forced to marry a man she was unhappy being with, to avoid the “societal ostracism” of being flogged.

“I was 22 at the time. Hassan, my boyfriend, was 30. We had been in a relationship for about six months and it wasn’t really working out. Hassan was too possessive for comfort, and I was looking for a way out of the relationship. And then, in the middle of all this, I became pregnant,” Fathima said.

“There was no one I could go to with the problem. My parents would have been outraged and I did not, rather I do not, have the courage to take the chance of being found out and flogged; of being banished to some island and losing everything, from my family’s acceptance of me to my reputation and this job I love. So, although things were already sour, Hassan and I got married in a rush,” she continued.

Fathima gave birth to a baby girl less than seven months into the marriage. She said the couple had the baby abroad for fear of being found out if they had stayed in the Maldives for the delivery. After a difficult and emotionally abusive marriage, Fathima filed for divorce a year after the wedding. She does not get any support for the child from the father, and is currently working as a single mother.

“I sometimes wonder if, compared to the hardships I am facing now, it was worth it to spend all my savings on the wedding and the trip abroad for delivery of my child. Hassan was of no help except for the name he lent to my child. I ask myself if it wouldn’t have been better to have just faced the shame of flogging back then.

“Who am I kidding? I don’t think anyone deserves such degrading treatment. Let’s be real. It’s something that the authorities ignore until an official complaint is made or someone ends up getting pregnant, but there is hardly anyone in this country who does not have sexual relations prior to, or outside of, marriage. It’s the hypocrisy I hate worst of all,” she said.

Punishment or repentance?

Usthaz Abdul Mueed Hassan, a graduate of Qatar’s Mauhadini Sanawi and Azhar University, said that in its true spirit, Islam holds repentance and forgiveness in higher regard than the implementation of Hadd penalties.

Mueed, who holds a state-issued permit to lecture on religious issues, spoke to Minivan News about the implementation of Hadd, while also commenting on the case of the 15 year-old rape victim sentenced to flogging.

“There is a verse in the Quran which comes in light of an incident in Quraish. The people of Quraish used to sell or give out their young females to guests they held in high regard, against the wishes of these youth. The verse was in response to questions that arose as to whether these youth would be considered sinners,” Mueed explained.

He referred to the conclusion of Verse 33 of Noor Surah in the Quran which reads: “But force not your maids to prostitution when they desire chastity in order that ye may make a gain in the goods of this life. But if anyone compels them yet after such compulsion is Allah Oft-forgiving Most Merciful [to them].”

“In circumstances where a woman is forced into sexual relations, like in the instance of rape, Hadd will not apply to them. As in the verse I’ve quoted, Allah himself has forgiven them. None is above Allah. And since He has granted forgiveness, there is no more for us to do. It is very clearly stated so,” Mueed said.

“Anyone who reads these verses in the correct way and in their right order can clearly make out under what circumstances a punishment should and should not be given,” he said.

“Islam does not permit any Hadd to be delivered if there is any ‘Shubha’ [doubt] about the offence having been committed,” Mueed said, referring to sayings of Prophet Muhammad, as cited in the book Fiqh Al-Sunnah, Part II.

“The Prophet has also said that when seeking to implement Hadd on a person, if there is detected even the slightest reason to let it go without implementing the Hadd, then do so. He then says that this is because it is far better for the person in charge – be it a judge, a president or an Imam – to err in forgiving a person than to err in sentencing a person to any Hadd,” Mueed said.

“So even in the current case of the 15 year-old, if there is the slightest doubt – say for example, the girl is not fully mature and aware, or she is not explicitly aware that fornication is ‘haram’ (prohibited) – then it is better to not implement the sentence,” Mueed stated.

Mueed said that in Islam, proving offences like Zinah (fornication out of wedlock) beyond doubt is deliberately made to be difficult to achieve. Even if a person confesses to a crime, if he or she later denies it, then the Hadd cannot be observed, he said.

“For example, for this Hadd, there has to be four male witnesses with perfect eyesight who have seen the act occur at the same time, in the same manner. Four eyewitnesses being there is in itself unlikely, unless it is in a highly corrupted society and such acts are committed outside in public places. Furthermore, if three of them provide witness and the fourth ends up differing, then these three witnesses will be sentenced for ‘gazf’ (false accusation against a chaste and virtuous person of having committed fornication),” he continued.

“What is the reason for this to be made so complicated in Islam? It is to discourage implementation,” Mueed stated. “One must not take the literal, word by word, meaning of the Quran and Prophet’s sayings. We must interpret its words in the light of the true spirit of the religion and with reference to history.”

“For Hadd of Zinah to be sentenced upon a person, there are four requirements that must be met: the person must be of sound mind, must have reached puberty, must have committed fornication willingly without any compulsion and must know that the act of fornication is ‘haram’ in Islam,” he explained.

The religion-based political party Adhaalath Party, members of which largely dominate the Ministry of Islamic Affairs, has meanwhile stated that “No one has the right to criticise any penalties specified in Islam,” and that “criticising issues like this would encourage enemies of Islam, create confusion among the general public and open up opportunities for people who aim to stop the practice of similar penalties commanded in Islam.”

In a statement released in February, the party said “The purpose of penalties like these in Islamic Sharia 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 or torture.”

Corporal punishment is cruel, degrading, unacceptable: UN

Human Rights Advisor at the UN Country Office Safir Syed expressed concern over the implementation of flogging, especially in the case of minors, in the Maldives.

“It is unacceptable and against international standards. It is also important to keep in mind, apart from the physical trauma, the psychological effects the punishment may cause,” Syed said.

Stating that corporal punishment, including flogging, are explicitly prohibited under international law, Syed backed his statement citing from numerous UN standards and human rights mechanisms.

“While Article 7 of the ICCPR (International Covenant on Civil and Political Rights) states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, Article 37 of the Convention on the Rights of the Child add that ‘State Parties should ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age,'” Syed quoted.

Syed noted that in July 2012 the UN Human Rights Committee had called on the Maldivian state to “abolish flogging and explicitly prohibit corporal punishment in all institutional settings.”

Similarly, in 2007 the UN Committee on the Rights of the Child had expressed concern that corporal punishment is considered lawful as a sentence for crime and for disciplinary purposes, and called on the state to abolish the use of corporal punishment under such circumstances.

Syed also referred to the 2005 report of the UN Special Rapporteur on torture, on the legality of corporal punishment under international law.

“The Special Rapporteur stated that any form of corporal punishment, be it flogging, amputation, etc, is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Rapporteur also said that States cannot hide behind domestic laws as justification for this violation of human rights obligations,” Syed said.

Meanwhile, an online petition by Avaaz.org calling on the Maldivian government to end the practice of flogging women and children for the crime of fornication has been signed by over a million people worldwide.

*Names changed at request

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Judicial Services Commission subject to “external influence”: UN Special Rapporteur

The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, has raised concerns over the politicisation of the Judicial Services Commission (JSC).

As part of a wider review of the Maldives justice system, Knaul claimed that the JSC – mandated with the appointment, transfer and removal of judges – was unable to perform its constitutional duty adequately in its current form.

Her comment was among a number of preliminary observations on the Maldives’ judiciary and wider legal ecosystem, following an eight day fact-finding mission concluded today.

Knaul is an independent expert appointed to deliver recommendations on potential areas of reform to the Maldives’ legal system, at the 23rd session of the UN Human Rights Council in May, 2013.

As well as recommendations to address what she said were minimal levels of public “trust” in the nation’s judicial system, Knaul also addressed matters such as the trial of former President Mohamed Nasheed.

Nasheed is currently facing trial for his detention of Chief Judge of Criminal Court last year, charges he claims are politically motivated to prevent him from contesting presidential elections later this year.

Knaul maintained that the former president, like every other Maldivian citizen, should be guaranteed a free and independent trial.

The three branches of the state should be equal in their importance, with no branch exercising power over any other, Knaul said.

A “power struggle” ensuing from a “lack of understanding in the delimitation of the respective competences” of the executive, legislative and judicial branches of the state had “serious implications on the effective realisation of the rule of law in the Maldives.”

Politics in the JSC

Knaul’s key concerns included the politicisation of the JSC.

The JSC created the Hulhumale Magistrate Court in which former President Mohamed Nasheed is currently being tried, and appointed the three-member panel of judges overseeing the case. JSC head Adam Mohamed – also a Supreme Court judge – cast the deciding vote in a Supreme Court ruling on the court’s legitimacy.

“I have heard from numerous sources that the current composition of the JSC is inadequate and politicised. Because of this politicisation, the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly,” Knaul stated.

Knaul said she believed it best for such a body to be composed of retired or sitting judges. She added that it may be advisable for some representation of the legal profession or academics to be included.

However, she maintained that no political representation at all should be allowed in a commission such as the JSC.

“I believe that an appointment body acting independently from both the executive and legislative branches of government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice,” Knaul added.

The JSC is currently comprised of Supreme Court Judge Adam Mohamed, Speaker of Parliament Abdulla Shahid, High Court Judge Abdulla Hameed, Lower Court Judge Abdulla Didi and MP and government-aligned Jumhooree Party (JP) Leader and presidential candidate Gasim Ibrahim.

Also on the commission is the member appointed from the public, Sheikh Shuaib Abdul Rahman, President’s Appointee Mohamed Saleem, lawyer Ahmed Rasheed and Attorney General Aishath Azima Shukoor.

Judicial independence

Knaul stated that upon conclusion of her mission meetings, she had found that the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself, in the Maldives.

“The requirement of independence and impartiality does not aim at benefiting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial,” Knaul stated, while emphasising the important role of integrity and accountability in judicial independence, and hence its role in the implementation of the rule of law.

Stating that it is vital to establish mechanisms of accountability for judges, prosecutors and court staff, Knaul said: “Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available.”

Transparency and accountability

“When selection criteria [of judges] used by such a body [as the JSC] are objective, clear, based on merit, transparent and well publicised, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection of appointments can be avoided,” Knaul said.

Knaul also spoke of the lack of transparency in the assignment of cases, the constitution of benches in all courts, including the Supreme Court.

“When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption, and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption,” she observed.

Knaul stated that while transparency is public administration is an obligatory requirement in a democracy, transparency remains a challenge for the Maldivian judiciary.

Furthermore, Knaul highlighted the absence of some fundamental legislation – including the Penal Code, Criminal Procedure Code and the Evidence Act – in the Maldives, adding that this posed huge challenges to upholding the rule of law.

Empowerment of the law community

Knaul spoke of the importance of establishing an independent self-regulating bar association, and of ensuring lawyers remain free from external pressures and influence.

The special rapporteur commented on the practice in the Maldives of the attorney general having the powers of issuing legal practice licenses and of taking disciplinary action against practicing lawyers, terming it “contrary to the basic principles of the independence of lawyers,” and adding that such powers should not rest with the executive branch of the state.

“I further deem that the enforcement of compulsory registration of lawyers to appear before the courts by the courts themselves is unacceptable,” Knaul continued.

“The regulation of disciplinary action against lawyers fall outside the prerogative of the judiciary and contradicts the principle of independence of the legal profession.”

The rapporteur also commented on recent cases of lawyers being charged with ‘contempt of court’ for voicing criticisms, terming this “threats to muzzle the freedom of expression of lawyers.”

“Lawyers, like other citizens, are entitled to freedom of expression, and in particular they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the protection and promotion of human rights, without suffering professional restrictions.”

Other issues that Knaul highlighted included the relatively low number of sitting female judges, the lack of education and training possibilities for persons in the judicial sector, and the lack of trust the general public has in the country’s judiciary.

“I was struck to hear how little trust the public has in the justice system in the Maldives. Justice must not merely be done but must also be seen to be done, and judges must not only be actually impartial they have to appear impartial to the public. The mind-sets of the public and the authorities, including judicial authorities, have not evolved as quickly as the changes were made to the Constitution and the laws of the Maldives. This created a disconnection between the promises of the 2008 Constitution and people’s expectations, and the reality of how justice is delivered and the separation of powers implemented,” she stated.

Knaul is an independent expert who is appointed by the UN Human Rights Council (UNHRC) whose position is pro bono. She reports to, and advises, the UNHRC and the UN General Assembly.

Knaul’s statement in full:

“Members of the press, ladies and gentlemen,

I am very happy to be here with you today and share my preliminary observations at the end of my 8-day official mission to the Republic of Maldives.

I should underline from the outset that today I will confine myself to a few remarks. These issues, along with others, will be explored in a more detailed manner in the written report that I will prepare and in which I will also formulate recommendations. I will present this report at the 23rd session of the United Nations Human Rights Council at the end of May in Geneva.

I wish to stress that I am an independent expert who reports to, and advises, the UN Human Rights Council and the UN General Assembly. Although appointed by the Human Rights Council, I am not employed by the United Nations and the position I hold is pro bono. As an independent expert, I exercise my professional assessment and expertise and report directly to the Member States of the United Nations.

Let me begin by warmly thanking the Government of the Maldives for inviting me to conduct this official mission and for facilitating a rich and interesting programme of meetings and visits in Malé and Addu city while respecting the independence of my mandate. I also wish to note that the previous administration and President had also extended an invitation for me to conduct an official visit in 2012, which could not be realized for a combination of factors, including my own availability.

The purpose of this mission was to understand, in the spirit of co-operation and constructive dialogue, the situation regarding different aspects related to my mandate, and in particular how the Maldives endeavours to ensure the independence of the judiciary, prosecutors and lawyers, their protection, as well as their accountability, and the obstacles encountered which may impede actors of the judicial system to discharge their functions effectively, adequately and appropriately and deliver justice.

During my visit, I had the privilege to meet the President, His Excellency Dr Mohamed Waheed, the Minister of Foreign Affairs, His Excellency Dr Abdul Samad Abdullah, as well as other Government officials, including the attorney general. I also held meetings with the chief justice, the Supreme Court, a number of judges from superior and magistrates’ courts, the prosecutor general, members of the legal profession, members of the People’s Majlis, as well as representatives from various political parties, non-governmental organizations and United Nations agencies. I would like to take this opportunity to thank all those who have dedicated some of their time to present their informed opinions and perspectives to me.

I would like to commend the Maldives’ efforts in establishing a democracy based on the rule of law and the principle of separation of powers. The principle of separation of powers, which is enshrined in the Constitution of 2008, is the bedrock upon which the requirements of judicial independence and impartiality are founded and represents an essential requirement of the proper administration of justice. Understanding of, and respect for, this principle is a sine qua non for a democratic State.

I have heard of positive changes carried out in the last years, which have improved the independence of the judiciary. Transitions, however, always come with challenges, and very often more challenges are encountered along the way. There is always room for improvement. In the Maldives, many challenges to the independence of judges, prosecutors, court officials and lawyers remain, and these directly affect the delivery of justice. Those challenges should be assessed and addressed as a matter of urgency within the parameters laid down by the Constitution and international human rights standards. In the longer-term, the Maldivian people should consider reforms to the Constitution, with the view to improving the tools and measures at the disposal of the State to ensure the independence of the judiciary and the delivery of fair and impartial justice.

Measures to address challenges will only be effective and bring consolidated changes if de-politicized dialogue is prioritized in the Maldives. Measures will have to be inclusive of different views and opinions and be generated through broad consensus. Otherwise, implementation will not be possible. Both short-term and long-term measures have to be combined in order to consolidate the democratic transition and strengthen all the institutions of the State. The Maldives have to continue in its efforts to move forward.

All branches of the State are equally important and none should be above the other. All institutions have a role to play and responsibilities regarding the consolidation of democracy. I am under the impression that the Parliament, the Government and the judiciary, created in the Constitution of 2008, have been testing the limits of their competences, sometimes encroaching on principles established in the Constitution. The lack of understanding in the delimitation of the respective competences and the ensuing power struggle that I have witnessed during my mission have serious implications on the effective realization of the rule of law in the Maldives.

Positive as well as negative recent developments should be recognized and everyone should take its responsibilities and avoid blaming the other branch, the other institution or the other political party for the difficulties faced by the Maldives. Dialogue, respect for the Constitution, transparency and access to information, and accountability are key to a better and more coherent functioning of the institutions of the State, which will serve the people of the Maldives.

I further believe that the concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including among judicial actors. The requirement of independence and impartiality does not aim at benefitting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial. Integrity and accountability are therefore essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law.

In this context the establishment of mechanisms of accountability for judges, prosecutors and court staff is imperative. Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available.

Serious concerns were expressed to me regarding the system of appointment of judges. I believe that an appointment body acting independently from both the executive and legislative branches of Government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice. When selection criteria used by such a body are objective, clear, based on merit, transparent and well-publicized, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection or appointments can be avoided.

I have heard from numerous sources that the current composition of the Judicial Services Commission, the body in charge of the appointment, transfer, and removal of judges, is inadequate and politicized. Because of this politicization the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly. While I believe that usually such a body should preferably be composed entirely of judges, retired or sitting, some representation of the legal profession or academics could be advisable. No political representation should be permitted.

I have heard concerns about the apparent lack of transparency in the assignment of cases, as well as in the constitution of benches, within all courts, including the Supreme Court. When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption.

I further believe that transparency in public administration is not an option, but a statutory and obligatory requirement that is fundamental to a democracy. Yet, transparency remains a challenge for the judiciary in the Maldives, like in many other parts of the world.

One major challenge for the fair, impartial and consistent delivery of justice is the lack of some basic pieces of legislation, such as the Penal Code, the Criminal Procedure Code, the Civil Procedure Code, or the Evidence Act. As a result, judges have had to rely on laws and acts that were passed before the Constitution of 2008 and may contradict it, as well as on principles of Islamic Shari’ah, which is not codified and may be subject to different interpretations. This lack of legislation creates ambiguity and represents a real challenge for enforcing the rule of law and respecting the principle of legality.

I believe that a uniform legal system respecting the principles enshrined in the Constitution is necessary to create consistency in the administration of justice, avoiding difficulties for litigators to seek justice and judges to render decisions that are impartial and fair. When essential legislation is lacking it is also almost impossible to monitor the quality and consistency of justice delivery. Passing laws is imperative to implement the Constitution and the People’s Majlis should bear in mind how their actions or inaction affects the establishment of the rule of law. The Government too should show strong leadership to move the development and adoption of essential legislation forward and ensure that their contents are in line with the promotion and protection of human rights.

Coming to the legal profession, I would like to note that while lawyers are not expected to be impartial in the same way as judges, they must be as free from external pressures and interferences as judges are. When guarantees are not in place to enable lawyers to discharge their duties in an independent manner, the door is open to all sorts of pressure and interference, whether from public or private actors, including judges, who seek to have an impact on or control judicial proceedings.

I have serious concerns about the absence of an independent self-regulating Bar association or council that oversees the process of admitting candidates to the legal profession, provides for a uniform code of ethics and conduct, and enforces disciplinary measures, including disbarment. Such an organization would not only provide an umbrella of protection for its members against undue interference in their legal work, but also monitor and report on their members’ conduct and apply disciplinary measures in a fair and consistent manner.

It is contrary to the basic principles of the independence of lawyers that licences to practice law, as well as disciplinary measures, lay in the hands of the executive, in the case of the Maldives, the Attorney General. I further deem that the enforcement of compulsory registration of lawyers to appear before the courts by the courts themselves is unacceptable. Further, the regulation of disciplinary measures against lawyers falls outside of the prerogative of the judiciary and contradicts the principle of independence of the legal profession. I am also concerned about reports regarding threats of contempt of court used to muzzle the freedom of expression of lawyers. Lawyers like other citizens are entitled to freedom of expression, and in particular they shall have the right to take part in public discussion of matter concerning the law, the administration of justice and the protection and promotion of human rights, without suffering professional restrictions.

I always pay particular attention to the integration of a gender perspective and women’s rights in the justice system, and I have done so during my mission in the Maldives. I am concerned that there are currently no women sitting on the Supreme Court and only eight women sitting in the High Court, the Superior Courts and the Magistrate Courts. It seems to me that these women reached their positions through sheer determination and dedication since there is no policy or strategy to increase women’s representation on the bench.

In addition, all members of the justice system should be sensitized to gender equality and women’s rights to make access to justice a reality for women in the Maldives. Similarly, access to justice for other members of society who are particularly vulnerable to discrimination, such as children, migrant workers, or persons with disabilities, should be enhanced, and the judiciary should take into account the specific challenges and obstacles they face.

I was struck to hear how little trust the public has in the justice system in the Maldives. Justice must not merely be done but must also be seen to be done and judges must not only be actually impartial they have to appear impartial to the public. The mind-sets of the public and the authorities, including judicial authorities, have not evolved as quickly as the changes were made to the Constitution and the laws of the Maldives. This created a disconnection between the promises of the 2008 Constitution and people’s expectations, and the reality of how justice is delivered and the separation of powers implemented.

Finally, I am seriously concerned about the lack or inadequacy of education and training possibilities for all actors of the justice system in the Maldives, especially lack of training on international principles, the nature of judicial independence, responsibility and integrity, international human rights law, the Constitution and new legislation passed. Professional trainings also seem to be lacking. Judges, prosecutors and lawyers should have access to a wide-range of legal literature in the official language, Dhivehi, and quality continuing education, including specialized training on gender equality and women’s rights, international human rights law, and the human rights mechanism. Such trainings must be accessible to all judicial actors, regardless of the level at which they operate.

In addition, all actors in the justice system, in particular judges, prosecutors and lawyers must be properly educated and trained with regard to their respective codes of ethics and standards of conduct. Available, accessible, appropriate and quality education and training can over the longer-term significantly change attitudes that would otherwise be susceptible to corrupt conduct, unfair trial and the improper application of the law, and pave the way for strengthening both the integrity of the justice system and its independence.

Let me conclude by calling upon the international community, including foreign partners, United Nations agencies and other international and non-governmental organizations, to strengthen their engagement in the Maldives and continue contributing to the consolidation of the justice sector and the independence of the judiciary and the legal profession with concrete and sustainable programmes, whose implementation can be monitored and assessed.

Thank you for your attention.”

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Hulhumale’ Magistrate Court issues second arrest warrant for Nasheed

The Hulhumale’ Magistrate Court has issued a second arrest warrant for former President Mohamed Nasheed, an official from the Judiciary Media Unity has confirmed.

Five days after Nasheed sought refuge inside the Indian High Commission, the Judiciary Media Unity confirmed to Minivan News that Hulhumale’ Magistrate Court has now issued a new arrest warrant, ordering police to produce Nasheed at the court on February 20 at 4:00pm.

Police Spokesperson Sub Inspector Hassan Haneef also confirmed that the Maldives Police Service had received the court order for Nasheed’s arrest.

The former president has been taking refuge inside the Indian High Commission building in Male’ since February 13 to avoid arrest, after Hulhumale’ court previously ordered police to produce him at his scheduled trial.

Nasheed and his party have maintained that the charges put forward against him – of illegally detaining Chief Criminal Court Judge Abdulla Mohamed during his final days in office – are a politically-motivated attempt to prevent him from contesting presidential elections scheduled for later this year.

The latest arrest warrant comes after Nasheed failed to attend the last two scheduled trial hearings on February 10 and February 13.

An official from the Indian High Commission told Minivan News they were waiting to see the arrest warrant and are “watching the current situation”.

The situation has contributed to an escalation in diplomatic tensions between India and the Maldives, which has accused the former of interference in internal Maldivian affairs.

High Commissioner D M Mulay was summoned to the Foreign Ministry on Sunday and presented with a protest note from the government.

On Monday the High Commission released a statement “denying in entirety” allegations that it was being used by the former President “for political meetings and instigating street violence”.

Thousands of supporters of the former president have been protesting in the capital Male’ since Nasheed moved into the Indian High Commission last Wednesday.

On Saturday (February 16) over 5000 supporters marched through the streets of Male’ clashing with police, which resulted in 55 arrests during the night.

Nasheed’s decision to seek asylum in the Indian High Commission caught the attention of the international community last week. The US, UK, EU, UN and Commonwealth have since urged the Maldivian government to show restraint, whilst calling for “inclusive, free and fair elections” in September.

Arrest warrant is a threat to Nasheed’s life: MDP

Following the news of the latest warrant, Maldivian Democratic Party (MDP) Spokesperson Hamid Abdul Ghafoor said that the party are “firmly” against the former President from standing trial in an “illegitimate court”.

“The party firmly believes that he should not go [to Hulhumale’ Magistrate Court] and we firmly believe that the arrest warrant threatens his life.

“The moment he steps out of the Indian High Commission, that will be the end of him. Even the international community have recognised this as a witch hunt,” Ghafoor told Minivan News.

When asked as to whether former president will comply with the court order, Ghafoor said “it is Nasheed’s call”.

“The question is, what do the Indians do now? The Maldives authorities will now have to approach the Indian High Commission and ask them to hand him over.

“The minute the Indian government gave him refuge, they took a position. I can’t see the Indian government dropping Nasheed like a hot potato,” Ghafoor added.

The MDP spokesperson claimed the government had alienated itself from the international community given their stance on the matter. Ghafoor further claimed that foreign governments and organisations “can see” that attempts to arrest Nasheed “are nothing more than a witch hunt”.

India’s involvement criticised by Maldives officials

India’s involvement in the political dispute has been criticised by members of the Maldivian government, with the Home Minister Mohamed Jameel Ahmed tweeting last week: “What’s happening now gives us an indication of the extent and level of interest some countries prepared to take in our internal matters,” he said.

“I would strongly urge everyone to let our institutions deal with the challenges, and allow the Maldives to uphold rule of law,” he tweeted.

President of the Maldives, Mohamed Waheed Hassan Manik released his own statement yesterday condemning Nasheed’s actions on Wednesday.

“I am dismayed that the former President Nasheed sought refuge in the Indian High Commission in Male’ when he was summoned to the court. The court order which required the Police to arrest Nasheed and have him appear before the court was due to his refusal to attend court hearing. It had expired at 1600 hours on the 13 February 2013, and there is no reason for him to remain in the High Commission and to instigate street violence.

“The court order has nothing to do with my government. Upholding the rule of law means nobody is above the law. I would like to assure the people of Maldives that the law and order will be maintained,” the President’s statement read.

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UN Special Rapporteur on Independence of Judges and Lawyers arrives in the Maldives

The UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, arrived in the Maldives on Saturday (February 16) for a visit scheduled to last until February 24.

During her visit, Knaul will “examine measures taken to ensure the independence of the judiciary, prosecutors and lawyers, as well as their protection, and the obstacles encountered for an adequate, impartial and independent administration of justice”, the UN said in a statement.

Knaul, a judge from Brazil, will then submit her report and recommendations to the government and the UN Human Rights Council.

In its concluding statement following the Maldives’ Universal Periodic Review in 2012, the UN Human Rights Committee expressed concern that the composition and functioning of the Judicial Service Commission (JSC) “seriously compromises the realisation of measures to ensure the independence of the Judiciary as well as its impartiality and integrity.”

“The Committee is also concerned that such a situation undermines the judicial protection of human rights and fundamental freedoms in the [Maldives]. The [Maldives] should take effective measures to reform the composition and the functioning of the Judicial Service Commission (JSC),” the UN report stated.

“It should also guarantee its independence and facilitate the impartiality and integrity of the Judiciary, so as to effectively protect human rights through the judicial process,” it added.

Although unrelated, Knaul’s visit comes days after former President Mohamed Nasheed sought refuge from a court summons inside the Indian High Commission in Male’.

The Hulhumale’ Magistrate Court, which is trying Nasheed for his detention of Chief Criminal Court Judge Abdulla Mohamed during his final days in office, was created by the Judicial Services Commission (JSC).

The JSC, which includes several of Nasheed’s direct political opponents including rival presidential candidate Gasim Ibrahim, also appointed the three-member panel of judges overhearing Nasheed’s trial.

Parliament’s Independent Institutions Oversight Committee had declared that the JSC’s creation of the Hulhumale’ Magistrate Court was unconstitutional.

However, the Supreme Court declared parliament overruled, issuing a statement that “no institution should meddle with the business of the courts”, and claiming that as it held authority over “constitutional and legal affairs” it would “not allow such interference to take place.”

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” the Supreme Court stated.

A subsequent request by the JSC that the Supreme Court bench rule on the court’s legitimacy resulted in a four to three vote in favour. The casting vote was made by Supreme Court Judge Adam Mohamed, also President of the JSC.

A troubled judiciary

Besides the UN Human Rights Committee, numerous international organisations and reports have challenged the political independence of the JSC and the judiciary.

A report by independent observers of the Nasheed trial from the UK Bar Human Rights Committee concluded that “a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”

A report by the International Committee of Jurists (ICJ) in February 2011 found that many judges were lacking in qualifications and independent attitude.

“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, former Director of the ICJ’s Asia Pacific operations at the time.

“Historically, [independent resolution] has not been the role of judges [in the Maldives]. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand said.

The ICJ was highly critical of the the JSC, which it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.

“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” Normand said.

Former JSC member and whistleblower Aishath Velezinee first raised problems in the judiciary and JSC in August 2010.

“My experience, from being part of the complaints committee in the JSC, is that whenever a complaint is received, we have two judges on the complaints committee who will defend the [accused] judge, trashing the complainant, and talk about ‘taking action’ against these people ‘who are picking on judges’,” said Velezinee, in a 2010 interview.

“Then they will put out a press release: ‘Nobody should interfere with work of judges.’ Their interpretation is that ‘nobody should criticise us. We are above and beyond the law.’”

She was subsequently stabbed three times in the back in broad daylight on Male’s main tourist street in January 2011.

A more recent report produced by local NGO the Raajje Foundation and supported by the UNDP and the US State Department, noted that the JSC’s mission under the 2008 constitution to ensure the new judiciary was was clean, competent, and protected from political influence, “has sadly gone unfulfilled.”

“The courts have essentially been able to capture the JSC so as to ensure that the old judiciary remained in place under the new constitutional order,” the report noted, predicting the most likely national outcome a cycle of failed states.

President Dr Mohamed Waheed Hassan Manik has insisted on the government’s independence of the judiciary, stating that the court case “”has nothing to do with my government. Upholding the rule of law means nobody is above the law. I would like to assure the people of Maldives that the law and order will be maintained,” he said, in a statement on Sunday.

“My government has upheld the rule of law and respected all independent institutions. I am pleased to note that unlike in the past, within the last year, the President has not interfered in the work of the judiciary, the police, or the independent commissions,” Waheed’s statement read.

Meanwhile, Home Minister Mohamed Jameel – formerly Justice Minister under the 30 year autocracy of Maumoon Abdul Gayoom – told local media that it was “crucial [the judiciary] conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”

“Every single day that goes by without the case being concluded contributes to creating doubt in the Maldivian people’s minds about the judiciary,” Jameel said.

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Hearing cancelled for 15 year-old girl facing fornication charges

The hearing of a 15 year-old girl charged with having “consensual sexual relations” was cancelled on Wednesday (January 23) following a request from the Prosecutor General (PG).

Juvenile Court Official told local media that the PG wanted to cancel the hearing as “charges had been raised against an individual for engaging in sexual activity with an underage person while holding a trustworthy position”, local media reported.

The hearing – to take place in Juvenile Court – had been cancelled in order for the PG to see if there was any reason to withdraw the fornication charges against the girl.

According to local media, the letter sent by the PG to Juvenile Court requesting the cancellation of the hearing did not mention who the “trustworthy” person was.

Earlier this month, a PG’s Office spokesperson confirmed that the charges against the minor were related to a separate offence under Sharia Law, which had been filed on November 25, 2012.

The 15 year-old, who is from the island of Feydhoo in Shaviyani Atoll, last year gave birth to a baby that was discovered buried in the outdoor shower area of a home on Feydhoo. Her stepfather was later charged with sexual abuse, possession of pornographic materials and committing murder without intent.

According to local media, the mother is now facing charges of concealing a crime.

The PG’s Office and the Juvenile Court were not responding to calls from Minivan News at time of press.

The charges against the 15 year-old have been labelled an “absolute outrage” by NGO Amnesty International.

In a statement Amnesty International’s Maldives Researcher Abbas Faiz stressed that suspected victims of rape and sexual abuse required counselling and support rather than criminal prosecution.

“We urge the Maldivian authorities to immediately drop all charges against the girl, ensure her safety and provide her with all necessary support,” the NGO’s statement read.

Amnesty Intentional also raised concerns that should the minor be found guilty of “fornication” as reported in the media, she could potentially be flogged in line with sentencing for similar cases held in the country.

“If found guilty of ‘fornication’ the girl could be punished with flogging. She would likely be kept under house arrest until she turns 18 when, under Maldivian law, the flogging can be carried out. Flogging is a violation of the absolute prohibition on torture and other cruel, inhuman and degrading treatment or punishment,” Amnesty International stated.

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Foreign Ministry stalls return of 8000 “ownerless” passports

The Foreign Ministry has stalled attempts to hand over almost 8000 foreign passports to their respective High Commissions, claiming details regarding the owners whereabouts still needed to obtained by immigration authorities, local media has reported.

State Foreign Minister Hassan Saeed said the Foreign Ministry will only deliver the passports to the respective consular authorities once immigration clarifies the location of the owners, a task described as “huge” and “difficult” by Immigration Controller Dr Mohamed Ali.

Saeed claimed the number of foreigners who had not left the Maldives while on temporary travel documents was close to the number of ownerless passports held at immigration, local media reported.

“We have a number of foreigners who have left the Maldives on temporary travel documents. But if that number does not match with the passports and if we try to hand over the passports there will be complaints, and questions asked over the quantity of the passports and the whereabouts of the holders,” Saeed was quoted as telling local newspaper Haveeru.

Dr Ali told Minivan News on Tuesday that it would be a “huge task” to obtain the details needed before the passports could be handed over to the respective High Commissions.

Asked if it was realistic to expect immigration to find the whereabouts and details of the owners of all 8000 passports, Ali said such feat would be a “difficult task”.

According to local media the exact number of expatriates in the Maldives is unknown. However immigration statistics show there are 120,000 registered expatriates who regularly pay their visa fees and a further 40,000 illegal immigrants.

Ali told local media that the majority of the passports are from Bangladesh, however there were passports from India and Sri Lanka as well.

An official from the Indian High Commission said the passports should be returned to the respective governments, as they posed a security risk.

The official condemned the practice of Maldivian employers – including some government departments – withholding the passports of their employees: “Keeping someone’s passport is a threat on a private level.

“Passports should belong to the person and no one else. It is a security risk for individuals to not have their passport in their possession,” the official said.

Earlier this month, the Ministry of Foreign Affairs inaugurated an initiative targeted at raising awareness of the issue of human trafficking in the Maldives.

The Maldives has come under strong criticism internationally in recent years over its lack of effort to prevent people trafficking, with the country appearing on the US State Department’s Tier Two Watch List for Human Trafficking three years in a row.

Speaking at the recent inauguration of the Blue Ribbon Campaign Against Human Trafficking, Minister of Foreign Affairs Dr Abdul Samad Abdulla stated the initiative formed part of a larger plan to try and addressing human trafficking in the Maldives.

“We have been conducting a lot of work to deal with the issue, though it may be generally a little known fact,” Samad claimed. “Our intention now is to work together with local media outlets and create more awareness about the issue. I would like to request media cooperate in this initiative.”

The Foreign Ministry also announced it had signed a memorandum of understanding (MOU) with multiple local media outlets in the country to conduct the Blue Ribbon Campaign.

Minivan News was awaiting a response from the Foreign Ministry at time of press.

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UN Resident Coordinator departs Maldives

UN Resident Coordinator Andrew Cox has left the Maldives following the conclusion of his tour of duty.

In a departure statement, Cox expressed “gratitude for the excellent cooperation he received from the government, state institutions, civil society organisations and the media during his time as the UN Resident Coordinator in the Maldives.”

Cox also paid a farewell call on President Dr Mohamed Waheed. According to the President’s Office, “Waheed expressed his gratitude for the enormous contribution made, and the support received towards the development of the Maldives, during Mr Andrew Cox’s tenure as the UN Resident Coordinator.”

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