This is the second issue of the Human Rights newsletter, Sallaa, produced by Transparency Maldives.
View/Download the Dhivehi newsletter here
This is the second issue of the Human Rights newsletter, Sallaa, produced by Transparency Maldives.
View/Download the Dhivehi newsletter here
Maldives has had five-year development plans, but no overall long term plans. Development currently depends on promises by political parties. As often happens, even existing land use plans (drawn up for some islands) are swept away to fit party pledges.
Using the following foreign and local investments that have faced difficulty over the recent years due to ad hoc policies and government changes, this governance update will attempt to highlight the dangers of pledge-based development plans compounded by a lack of national and regional development plans.
Cases referred to in this governance update includes: the airports that has been pledged to be built in Dhigulaabaadhoo and Khulhudhuffushi; Gulhi Falhu development project; the GMR airport deal and the Tsunami aid cases.
Read the full governance bulletin here: CFIP Governance bulletin 06 – 2016
Transparency Maldives has launched a campaign called “Ma Bassa”.
“Ma Bassaa” is a campaign by the Climate Integrity Project (CIP) of Transparency Maldives to advocate for and promote “Inclusive Governance”. The aforementioned title of the campaign roughly translates to “include/involve me” in Dhivehi.
Through this campaign we aim to bridge the gap between local communities; CBOs and the implementing agencies and government institutions of the country. For successful implementation of climate change projects in the Maldives, it is essential that local communities have a sense of ownership towards ongoing climate change programs
The consultations for the Assessment of Climate Finance Governance by TM showed unanimity amongst all stakeholders for the need for better governance of climate finds and the need for collaboration between donors, the government and civil society. It is this collaboration that the “Ma Bassaa” campaign aims to facilitate.
We have written a governance update on our campaign and what it entails.
Read out governance update here: Climate Integrity Project, Governance Update August 2016
With the rapid development of the tourism and fisheries sectors, the Maldives has enjoyed a long period of robust economic growth. The average rate for real GDP increase between 2000 and 2009 has been 6%, which is one of the highest in Asia. Multiple developmental projects, categorized as climate mitigation and adaptation projects, are announced each year from harbour construction and land reclamation to housing, water and sanitation.
However, this development comes at a cost. This governance update will highlight the issues and costs of undertaking developmental projects without long term considerations of climate change mitigation and adaptation.
As Margareta Wahlstrom, the UN Assistant Secretary-General for Disaster Risk Reduction stated, “Climate change is treated as a disaster but it is a very fundamental development issue.”
The majority of the aforementioned projects are in the form of loans and grants from various international donors and organizations, worth millions of dollars, to aid the country in its efforts to combat the negative effects of climate change.
We will also be touching upon the importance of community consultation and participation when implementing developmental projects and the negative consequences of failing to do so.
Read our governance update here: Climate Finance Governance Update May 2016
With the recent Audit report of the Ministry of Environment and Energy and the recommendations of the Auditor General, TM has published a Climate Finance Governance Update highlighting the theme “All climate related expenditure and financial statements must be ensured as free from corruption.”
View the download at: Climate Governance Update June
As we sign the Paris Agreement, the system of climate finance governance in the Maldives needs improvement.
The Climate Finance Governance Update seeks to highlight recommended areas for improvement in our climate finance system.
View/download the Climate finance governance update
In 2014 a child custody dispute took place between a Maldivian man, Ahmed Sharaan, and a German woman, Tanja Sharaan. The two had met in 2013 whilst both were working in a Maldivian resort and had subsequently become romantically involved, getting married later in the same year.
Following their nuptials, the two moved to Switzerland, where they had a daughter. When the daughter was 5 months old, the father, unhappy with having to live abroad took forced custody of the child and travelled back to the Maldives without the mother’s knowledge, whilst she was at work.
Tanja subsequently returned to Male’ to try and find her daughter and Ahmed went into hiding with the child. Availing herself of legal counsel at a local firm, Tanja filed a case at the Maldives Family Court to take back custody of her daughter.
The initial difficulty in proceeding with the trial was locating Ahmed, whose lawyer appeared in court in his stead. Ahmed’s lawyer’s chief argument against granting custody to Tanja was that she would raise the child as a non-Muslim, despite Tanja having formally converted to Islam in 2013.
In February 2014 the Family Court ruled in favour of Tanja and ordered Ahmed to give Tanja practical custody of the child within 24 hours. Ahmed remained in hiding and, through his lawyer, appealed the decision to the High Court, which issued an injunction temporarily halting the Family Court order until the matter was deliberated upon by the Superior Court. This was done without the mother being given any prior notice.
The High Court ordered Ahmed to attend court in person and he subsequently came out of hiding to become involved in the court proceedings. During the proceedings, Tanja, who cannot speak Dhivehi, was not provided an interpreter by the state, as is constitutionally required.
On 20th March however, the High Court upheld the decision of the Family Court, granting Tanja custody of the child, on the condition that she could not leave the Maldives as this would contradict the visitation rights of the father. Tanja was subsequently able to overturn the court imposed limitation on her freedom to travel and has since moved abroad and filed for divorce.
It should be noted that despite the case being resolved in the mother’s favour there were serious issues with how the trial preceded that detrimentally affected the quality of justice she received. That an important injunction affecting her case was issued without giving her any notice was highly problematic. Also of concern was that Tanja was not given an interpreter despite her inability to speak in Dhivehi, which was a serious impediment with regard to her ability to access justice in the Maldives as a foreigner. Article 51 of the Maldivian constitution delineates an interpreter as a right to be afforded to a party to a dispute in the event that that party does not understand the language in which proceedings are being conducted.
View/download a PDF of Case Study: Custody dispute between Maldivian and foreign national
A female magistrate in Hithadhoo faces constant verbal discrimination and bullying from her male colleagues.
The magistrate district in question has five serving judges, four of whom are male and one of whom is female. The female magistrate’s male colleagues are accused of repeatedly making lurid and inappropriate comments about the female judge’s choice of attire and subjecting her to constant verbal harassment.
The male judges are reported to be particularly unhappy with her rulings in cases involving domestic abuse and divorce requests on the basis that her rulings favored women in such disputes.
The male judges are reported to constantly question her competency to serve as a judge on account of her gender, despite the female judge in question being the only judge with a law degree on the district – and collectively advocate for her resignation.
Furthermore they are reported to have appealed to the Judicial Services Commission with regard to her ability to preside over cases involving Hudhood offences, as reportedly, they do not find it appropriate that a woman should preside over cases of that nature. Reportedly the JSC were in agreement with this view and she is no longer able to preside over such cases. Sources also informed that, in accord with their belief that female judges should not be able to rule over certain types of cases, they also advocate that she should only be given half the salary of a male judge.
Transparency Maldives would like to note that observers and stakeholders in the judicial affairs of the Maldives have repeatedly observed that there is prevalent gender discrimination in our Judiciary, and furthermore that, as a signatory to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), the Maldives has a responsibility to ensure that the type of behavior described above does not occur or go unpunished.
View/download a PDF of case study: Female magistrate in Hithadhoo faces discrimination and harassment from male colleagues
Hussain Humaam was arrested for the murder of Raa. Ungoofaaru Member of Par l iament Afrasheem Ali, who was found murdered near his residence on the 8th of October 2012.
He was arrested as a suspect during the initial round of investigations during which he confessed to the crime. He was tried at the Criminal Court where he was found guilty of first-degree murder on January 2013 on the basis of the aforementioned confession, and also witness testimony and forensic evidence which, according to prosecutors, attested to his guilt and corroborates with his confession.
Humaam subsequently retracted his previous confession, stating that it had been made under duress following police intimidation and, furthermore, on the understanding that if he had confessed, prosecutors would not press for the death penalty. Whilst Humaam has stated that although he is responsible for much violent activity during his criminal past, he denies involvement in Afrasheem’s murder.
The case was subsequently appealed to the High Court. It should be noted that although Humaam did not appeal the verdict within the time period allowed to make an appeal, under regulations pertinent to the death penalty in the Maldives, the death sentence can only be implemented after all stages of appeal have been exhausted. Hence death sentences handed out by the Criminal Court will automatically be appealed to the High Court after the period of appeal ends. Corollarily, if death penalty verdicts are upheld at the High Court, such cases will then automatically be sent to the Supreme Court for the final stage of appeal.
The High Court upheld the verdict in December 2015 stating that Humaam had twice confessed, and that court guidelines do not allow one to retract confessions of that nature at a later date; they further iterated the Criminal Court ruling citing that the aforementioned witness testimony and forensic evidence corroborated with Humaam’s earlier confession.
Currently the case is at the final stage of appeal at the Supreme Court, which has already held preliminary hearings. Humaam’s lawyers are, as of this writing, requesting that the Supreme Court allow them more time to prepare a defence, as the High Court has not yet given them the case report elaborating on their verdict (this reasoning was dismissed by the SC on the understanding that the relevant report is available on the High Court website). If the Supreme Court upholds the verdict of the Criminal Court and the High Court and all of Dr. Afrasheem’s surviving relatives insist on the application of the death penalty, there is a significant possibility that the state will put Humaam to death.
View/download a PDF of the Case Study: Hussein Humaam sentenced in Afrasheem murder
On the 1st of May 2015, Adhaalath Party leader, Sheikh Imran Abdulla participated in an antigovernment rally and delivered a speech lambasting President Yameen Abdul Qayoom’s administration. He was arrested on the day on the basis that his speech was directly responsible for the violence that ensued during the demonstration. Though he was not convicted of any offence the Criminal Court kept Sheikh Imran in detention based on the reasoning that he might express opinions that could contribute to further public disorder.
Sheikh Imran was subsequently released on the 27th of May before being rearrested two days later at the request of the Prosecutor General on the basis that Sheikh Imran’s speech constituted terrorism under the 1990 Terrorism Act.
On the 1st of June, the Criminal Court ordered him to be brought to court under police custody, with hearings scheduled for the next day.
Following the initial hearings, however, Sheikh Sheikh Imran was held without trial for a period in excess of 150 days before the trial process resumed on the 12th of October. It should be noted that during this period Sheikh Imran was repeatedly transferred between house arrest and prison, despite not having been convicted of any offence.
It is important to emphasize that under Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR), to which the Maldives acceded to in September 2006, the accused is to be tried without undue delay.
Furthermore the reasoning provided for the inordinate delay between the initial hearing and the resumption of the trial was that a new courtroom was under construction. Once the trial resumed however, hearings and trials took place inside of an old courtroom building.
During the trial prosecutors argued that Sheikh Imran’s speech directly contributed to the violence on May Day protest and that, under the Freedom of Assembly Act, organizers of a protest must be proactive in ensuring that violence does not occur as a result of their demonstrations.
It should be noted that during the speech Sheikh Imran repeatedly denied any intent of violence against the government. Nonetheless, the Criminal Cour t found the prosecution’s arguments persuasive and on the 28th of February 2016 found Sheikh Imran guilty of the charge of terrorism. Sheikh Imran was subsequently sentenced by the Criminal Court to 12 years in prison. Sheikh Imran still has the ability to have thisverdict contested at the High Court.
View/download PDF of Case Study: Sheikh Imran sentenced on terrorism charges
The purpose of this governance update is to provide a very brief introduction to the historical development of the Maldivian Judiciary from the earliest recorded times up until the introduction of the new Constitution in 2008.
Prior to the country embracing Islam in 1153 A.D legal disputes were settled according to customary law (Fooruve Rudin). The King (Radun) was the highest authority on judicial matters and a council of nobles and religious functionaries would have advised him in settling legal disputes that arose between his subjects.
Following the Maldives’ conversion to Islam there was an attempt to impose a uniform system of Islamic Sharia across the country – often with visiting Arabic travellers being offered senior judicial posts on the assumption that their superior command of Arabic than locals would have made them more erudite on matters of religious law.
View/download the governance update on Ancient judiciary of the Maldives
This governance update intends to highlight the problematic issues arising from the existence of serious gaps in the Maldivian legislative framework. The aforementioned gaps chiefly refer to the lack of procedural legislation that would serve as a guide to all relevant officials with regard to the technical and administrative substance of dispensing justice, whilst also delineating the rights that any person accused of a crime is to be entitled to.
At the time that this governance update is being written there is currently no Criminal Procedure Code, Civil Procedure Code or an up to date Evidence Act in operation in the Maldives. As will be expounded in the following sections, the existence of these gaps are severely problematic as it leaves proper procedure to be interpreted at the discretion of individual judges, leaving considerable scope for inconsistency in how justice is applied.
This update will focus separately on each of the above mentioned elements and, after explaining what each of these are, provide some detail with regard to why the lack of each has a detrimental impact on the quality of justice available in Maldives. It is hoped that this update can shine a light on why ameliorating this issue should be treated as a matter of urgency in terms of strengthening the efficiency and integrity of the Maldivian justice system.
Read the governance update on Legislative gaps