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Committee against Torture reviews the initial report of Maldives

Committee against Torture

28 November 2018

The Committee against Torture this afternoon completed its consideration of the initial report of Maldives on its implementation of the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Introducing the report, Ahmed Naseem, Minister at the President’s Office of Maldives, at the outset stressed that the newly inaugurated Government had replaced the highly repressive authoritarian regime and that the challenge was to rebuild democratic institutions, restore the separation of powers and checks and balances, and rebuild an independent judiciary.  Reforming prisons and eliminating the gap in the implementation of the laws prohibiting torture were prioritized, as was the cooperation with the Human Rights Commission of Maldives in the review of past cases of torture.  The declaration of states of emergency in 2015 and in 2018, arbitrarily declared by the then President as a pretext for mass detention of his political opponents, were deemed invalid by the Constitution, said the Minister, emphasizing that the many credible reports of torture and inhuman and degrading treatment during those periods would be properly investigated and examined.  The new Government would uphold the 65-year moratorium on the death penalty and review the question of the abolition of the death penalty very carefully, raise the age of criminal responsibility to 18, and enforce and implement with full effect laws such as the Sexual Offences Act, Prevention of Sexual Harassment Act, and the Domestic Violence Act.

In the discussion that followed, Committee Experts, welcomed the “breath-taking” policies and commitments announced by Maldives, and especially the commitment to address impunity for torture, which was the most serious concern, considering that, since the entry into force of the Anti-Torture Law, there had been no convictions for the 223 allegations of torture, made mostly against police and prison correction officers.  The Experts commended the setting up of a Commission on Murders and Disappearances to establish trustworthy investigations, and urged the new administration to ensure that it could carry out its work unimpeded by the police, prosecution or State authorities.  A long-standing issue of concern was the lack of an independent judiciary, and there was a need to reform institutions involved in criminal justice, notably police and prosecution, and increase their cooperation with the Human Rights Commission of Maldives in the investigation of complaints of torture and cruel treatment.  Maldives had put a lot of people in prison and had the seventh highest incarceration rate in the world, Experts remarked, wondering whether this was due to the war on drugs, the excessive use of pre-trial detention, or the use of imprisonment to control political opposition.  Maldives should strengthen the protection of victims of domestic violence and the implementation of the Domestic Violence Act, reform the legal provisions which exculpated perpetrators of child sexual abuse against married girls, and abolish corporal punishment, including flogging of children and victims of rape.

In concluding remarks, Mr. Naseem thanked the Committee for its understanding and hoped that the Experts appreciated the commitment of Maldives toward implementing the Convention. 

Jens Modvig, Committee Chairperson, thanked the delegation for their extensive replies and efforts.

The delegation of Maldives consisted of representatives of the President’s Office, Ministry of Home Affairs, Ministry of Foreign Affairs, Maldives Police Service, Attorney General’s Office, Embassy of Maldives in the United Kingdom of Great Britain and Northern Ireland, and the Permanent Mission of Maldives to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of Maldives at the end of its sixty-fifth session on 7 December.  Documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.  The webcast of the Committee’s public meetings is available via the following link: http://webtv.un.org/meetings-events/.

The Committee will reconvene on Thursday, 6 December at 3 p.m., to discuss follow-up to articles 19 and 22, and reprisals. 

Report

The Committee has before it the initial report of Maldives (CAT/C/MDV/1).

Presentation of the Report

AHMED NASEEM, Minister at the President’s Office of Maldives, stressed at the outset that the new President Ibrahim Mohamed Solih, whose inauguration took place only 10 days ago, on 17 November 2018, succeeded Abdulla Yameen who had led a highly repressive authoritarian regime that had committed a wide range of gross human rights abuses against the people in order to maintain his grip on power.  It was the Yameen regime that had submitted Maldives’ initial report to the Committee, Mr. Naseem said, emphasizing that the current Government’s view of the compliance with the Convention diverged substantially from the prior Government and was in fact consistent with those submitted to the Committee by the Human Rights Commission of Maldives.  It was hard to over-emphasize the dramatic transition that the country had undergone in recent weeks, continued the Minister; by their votes, the people had spoken loudly for the restoration of freedom, democracy and human rights.  The challenge was much broader than ensuring that all Maldivians were free from torture and other cruel, inhuman and degrading treatment, and encompassed also the rebuilding of democratic institutions, restoring the separation of powers and checks and balances to the system of government, and rebuilding an independent judiciary. 

Maldives had for too long overlooked issues of torture, punishment and prison reform, therefore, the new Government prioritized reforming prisons and eliminating the gap in the implementation of the prohibition of torture contained in the Anti-Torture Act and the Penal Code.  Furthermore, Mr. Naseem said, there was a commitment to fully cooperate with the Human Rights Commission of Maldives, which would require the review of past cases of torture and thoroughly reviewing Government systems for investigating allegations of torture to ensure that objective and independent conclusions were reached and victims could obtain justice and accountability.  The Government held that the declaration of states of emergency in 2015 and in 2018 had been invalid under the Constitution because they had been arbitrarily declared by President Yameen as a pretext for mass detention of his political opponents.  The many credible reports of torture and inhuman and degrading treatment during those periods would be properly investigated and examined.  Maldives was a party to the Optional Protocol to the Convention and had designated in 2007 the Human Rights Commission of Maldives a national prevention mechanism, which was only able to function properly with the ratification of the Anti-Torture Act in 2013. 

Turning to the death penalty, the Minister said that the majority of the 18 death sentences had been commuted to life imprisonment; today there were only three individuals on death row and the last execution had taken place in 1954.  The new Government would uphold the 65-year moratorium on the death penalty, and would review the question of the abolition of the death penalty very carefully.  Maldives strongly supported the new Protection of the Rights of the Child Bill submitted to the People’s Majlis on 26 June 2018, which banned corporal punishment of children, including by parents, and had decided to raise the age of criminal responsibility to 18 to be consistent with the obligations under the Convention on the Rights of the Child.  Maldives acknowledged the issue of gender-based violence and its disproportionate impact on women and was committed to enforcing and implementing with full effect laws such as the Sexual Offences Act, Prevention of Sexual Harassment Act, and the Domestic Violence Act, and through a wider judicial reform, ensure a fairer criminal justice system for all.  As for prior allegations of torture, a new Transitional Justice Committee was in place and was deliberating the establishment of a commission to review cases between 1 January 2012 to 17 November 2018, while the President had already established a Commission on Murders and Disappearances.

The new Government of Maldives was taking a dramatically different approach to complying with its obligations under international law and was taking substantive actions to close the gap between its commitments under the Convention against Torture and its implementation in practice, concluded the Minister.

Questions by Country Co-Rapporteurs

FELICE GAER, Committee Co-Rapporteur for Maldives, welcomed the participation of Maldives in this dialogue only 10 days after the inauguration of the new Government and welcomed its announced policies and commitments which she said were “breathtaking”.  The presentation of an initial report by a State party was a very special occasion, Ms. Gaer said, and noting a delay in submitting it to the Committee in time, asked which measures would be adopted to ensure timely reporting in the future, in consultation with the Human Rights Commission of Maldives and non-governmental organizations.

The Committee’s most serious concern in Maldives was impunity for torture.  Since the Anti-Torture Law had come into force, there had been 223 torture allegations, mostly against police officers and prison correction officers, but there had been no convictions.  What measures would be taken to address this accountability gap between the investigations by the Human Rights Commission and the State prosecution?

Ms. Gaer took note with satisfaction of Maldives’ intention to address the legacy of torture and inhuman and degrading treatment during the period from 1 January 2012 to 17 November 2018, and welcomed in particular the setting up of a Commission on Murders and Disappearances to establish trustworthy investigations.  What measures would be adopted to ensure that the new commission could carry out its work unimpeded by the police, prosecution or state authorities, to ensure that criminal cases could be opened against perpetrators, and how would those cases be tried and by which authority?  The delegation was asked about the role, composition and scope of work of the Transitional Justice Commission and how the crimes dating prior to 2012 would be addressed.

Turning to the situation of the judiciary, the Co-Rapporteur asked for clarification on what would be done to restore an independent judiciary, which was a long-standing issue of concern, including the steps to revive the Independent Judiciary Commission which promoted the appointment and transfer of judges and magistrates.  At its reaccreditation, the Human Rights Commission of Maldives had failed to obtain status A under the Paris Principles, due to, inter alia, the requirement that all its members must be Muslims and a limited mandate which did not encompass all human rights.  The national prevention mechanism was located within the Human Rights Commission, Ms. Gaer remarked, asking whether its reports would be published separately and whether the mechanism would be authorized to undertake unannounced visits.

The Committee remarked on the need to reform institutions involved in criminal justice, notably the police and prosecutors, and increase their cooperation with the Human Rights Commission in investigation of complaints of torture and cruel treatment.  Which State body was in charge of investigating allegations of torture and what was the difference in the remits of the Human Rights Commission and the National Integrity Commission in investigating police officers?  Would a new entity independent of the police be established to assist the investigation of police officers accused of torture?  There were only 40 prosecutors in 2013, and they had not been paid well, which made it hard to retain qualified staff.  What was being done to enhance the capacity and performance of the Prosecutor General’s Office, particularly in terms of investigating torture allegations?

Stressing that the prohibition of torture was absolute, the Co-Rapporteur asked about measures to ensure that the police, prison correction services and prosecutors were aware that a state of emergency did not represent a derogation from the absolute prohibition of torture.  What was being done to eliminate the statute of limitation from the Criminal Code for acts of torture?  On fundamental safeguards, the delegation was asked to explain how those were guaranteed to all those deprived of liberty, and to inform on access to legal aid.

Turning to the protection of vulnerable groups, Ms. Gaer remarked on a lack of effective protection mechanisms for victims of domestic violence and asked about concrete steps that would be taken to strengthen the implementation of the Domestic Violence Act, especially by the police and the judiciary.  Under the law on child abuse, including sexual abuse, the perpetrators of such acts committed against married girls were exculpated, which was a great source of concern to the Committee.  Would the penalty of flogging remain applicable, including for children, and especially for children victims of sexual abuse who were flogged for “engaging in fornication”?  What was being done to protect girls from female genital mutilation?

ABDELWAHAB HANI, Committee Co-Rapporteur for Maldives, welcomed the delegation’s commitment to closing the implementation gap in the prohibition of torture, protecting all citizens from enforced disappearance, and protecting children from corporal punishment.  Unfortunately, corporal punishment still existed in Maldives and was ordered by judges, noted Mr. Hani with concern, stressing that legitimate sanctions must be understood in the light of international law and must not legitimise various cultural practices.  There was diversity in the interpretation of Sharia in more than 70 countries, which ranged from very conservative to very progressive, he said, noting that Islam was not incompatible with the Convention - many Islamic States, using the principle of understanding the spirit of the law before the letter of the law and placing human dignity above all, had abolished slavery, the death penalty, and corporal punishment.  The Committee was concerned not only about the continued use of flogging, a punishment prohibited by the Convention, but about its discriminatory application, since women were sentenced to flogging at 15 times the rate for men.

On the application of the principle of non-refoulement, the delegation was asked to explain who monitored the compliance with the principle and the possibility of filing a complaint against an expulsion order, to provide refoulement-related data and statistics, and to inform on the application of fundamental legal safeguards for persons under expulsion orders such as legal aid, legal representation, and medical examination.  What procedure was in place to evaluate risks related to expulsion and removal?  How many migrants had had their permits revoked?  What was the average time spent in pre-expulsion detention facilities, particularly for migrants in the grips of the removal procedure?  Considering the new Government’s rejection of the previous practices, what concrete steps would be taken to improve the treatment of refugees, migrants and asylum seekers?

Mr. Hani welcomed the efforts by the Human Rights Commission to provide the Committee with relevant information, including on awareness raising and training related to the prohibition of torture and ill treatment, and asked how the impact of the training and capacity building was being measured, especially given the reluctance and opposition to change behaviours. 

The delegation was asked to outline the steps that would be taken to address the serious concerns related to the investigation of allegations of torture raised by the Human Rights Commission, to eliminate the systematic use of torture, and to strengthen the complaint mechanisms.  Did the Government’s plan for the first 200 days include the prohibition of the so-called book on torture techniques and other manuals beings used by the police, and the introduction of non-coercive interrogation methods?  The Human Rights Commission was given the lofty task of investigating allegations of torture, but it could not act as a state representative and replace a justice system, remarked Mr. Hani, asking the delegation to provide the legal basis for the Commission’s prerogatives and to explain how the investigations it conducted then became criminal prosecution cases.

Conditions of detention remained an issue of concern, especially the lack of access to health services and medication, poor hygiene, and inadequate food; in fact, half the complaints submitted to the Human Rights Commission were on those grounds.  What was being done to counter the serious issue of prison overcrowding, including the application of alternative measures to detention?

The Committee was greatly concerned about forced disappearances and murders of opposition activists, journalists and bloggers, including the disappearance in 2014 of journalist Ahmed Rilwan who wrote, inter alia, about the recruitment of youth in Maldives for the war in Syria. 

Questions by Committee Experts

The legal system of Maldives combined common law and Sharia, a Committee Expert remarked, noting that the diversity in the interpretation of Sharia between countries, and within a country could lead to inconsistencies in the domestic legal system.  Such was the case in the application of corporal punishment, including flogging of victims of sexual abuse and violence, including rape.

With regard to victims’ right to rehabilitation, other Experts stressed the importance of collecting and providing disaggregated data on redress provided to victims as a tool to monitor the State’s compliance with the obligations under the Convention.  What were the conditions in psychiatric establishments and social care homes and were those visited by the national preventive mechanism?

Maldives put a lot of people in prison and had the seventh highest incarceration rate in the world of 499 per 100,000 inhabitants, remarked JENS MODVIG, Committee Chairperson, asking what explained the phenomenon.  Could it be the war on drugs, the excessive use of pre-trial detention, or the use of imprisonment to control political opposition?  In spite of the repressive climate, some 700 people had submitted complaints of torture, probably under high risk of reprisals; this also meant that the number of cases of torture was probably far higher than that.

FELICE GAER, Committee Co-Rapporteur for Maldives, took positive note of the commutation of all but three death sentences and the commitment to continue the 65-year-old moratorium on the death penalty, and asked the delegation to explain the process and legal basis for the commutation.  What was the legislative timetable for the Government’s new initiatives and what issues would be prioritized?

ABDELWAHAB HANI, Committee Co-Rapporteur for Maldives, asked about isolation cells and solitary confinement in prisons and whether the time in isolation, which was now 30 days, would be brought in line with the international standard of 15 days as prescribed by the United Nations Standard Minimum Rules for the Treatment of Prisoners, or the Mandela Rules.

Replies by the Delegation

At the outset, the delegate stressed that the new Government of Maldives had been in place for 11 days only, and that it would do its utmost to respond to the concerns and questions that the Experts had raised.  The delegate reassured the Committee that more detailed information would be submitted in the second periodic report, which Maldives would submit in six months.  Female genital mutilation was not practiced in the country and no such cases had been registered.  The Constitution protected children from all forms of abuse, including flogging, as did a number of laws such as the Child Protection Act and Anti-Torture Act.  No children were placed with adults in prisons, said the delegate, reiterating that prison reform was the Government’s top priority.  Islam was the religion of the State according to the Constitution, and Maldives was a 100 per cent Muslim country.

One of the reasons that had caused considerable delay in the submission of the initial report was the lack of relevant data, another delegate said, informing the Committee that to overcome this issue, a Human Rights Portal of Maldives was being established, with the support of development partners.  The Portal would serve as the Government’s official human rights database, and all State agencies and entities had an obligation to enter relevant data in a timely manner.  With regard to an accountability gap between investigations and prosecutions for acts of torture, a delegate said that the Government was currently working on developing a mechanism to ensure that cases were not dismissed due to insufficient evidence.

In his inaugural address to the people of Maldives on 17 November, the President had declared the commitment to “take back the rights that we have been denied”, and thereafter had established a Commission on Releasing Political Detainees, a Presidential Commission on Corruption and Asset Recovery, which would soon commence its work, as well as the Commission on Murders and Disappearances.  Work was underway to grant statutory status to the commissions, and define their scope and detailed mandates.

Maldives recognized that the Human Rights Commission was indeed in need of additional funding to strengthen its capacity, the delegation said, explaining that the reports of the national preventive mechanism, housed by the Commission, were at first shared with the institution concerned and the relevant authorities, and published on the Commission’s website three months after the visit had taken place.  The Human Rights Commission was mandated by the Constitution to monitor the observation of human rights, including to investigate complaints it received and allegations of human rights violations.  Regardless of who submitted the complaint, the Commission had the obligation to ensure that the investigation was independent and transparent.  The Government’s priority was to ensure that any hindrances to the work of its human rights watchdog were removed and that its investigative powers were strengthened.

The Police Integrity Commission had been set up in 2008 to investigate allegations of police misconduct, while the Professional Standard Command of the police investigated all allegations of torture by police officers.  The Government was aware of the need to build the capacity of institutions and bring their work up to international standards.  The Anti-Torture Act prohibited torture in State custody and undisclosed locations, and it classified as an act of torture any detention without human contact for a prolonged period of time.  Maldives needed further assistance in improving its anti-torture legislation.

The delegation clarified that the legal changes such as removing the statute of limitations for acts of torture, amending the legal provisions which exculpated perpetrators of child sex abuse, and changing complaint mechanisms in prisons required a dialogue with stakeholders.  The Government pledged to conduct an audit of all its legislation in order to identify those laws that were in violation of the State’s international obligations and was committed to undertake major legislative reforms, including introducing a legal aid bill within the first few months of the administration, and so establishing a Public Defender Office.

With regard to refoulement or extradition, the delegation stressed that the procedure never took place if there was a risk of the person being exposed to torture, inhuman, or degrading treatment.  In 2017, Maldives had extradited 1,805 persons.  All cases of extradition were reviewed by the Supreme Court.  All persons in the forcible removal process retained the right to appeal the decision to the court.  Migrant workers were never returned if they ran a risk of torture.  Maldives was in the process of concluding extradition agreements with several countries.

The Government was committed to establishing a psychiatric medical health care unit which would be integrated in the State hospital and would also offer services at the community level.  The geography of the country spread over many islands presented an important challenge to the effective delivery of health care, said the delegation, stressing that institutionalization was being used as a measure of last resort.  The country’s very first Mental Health Bill was being prepared.

With regard to commutations of the death penalty, the delegation explained that previously, such power was in the hand of the President.  The new administration had prioritized consultations with all stakeholders and the public, including former political prisoners, in matters of prison reform and ensuring that there was no miscarriage of justice.  The current model of the Judicial Commission would be extensively revised in order to establish a judiciary that had the confidence of the people and upheld the Constitution and the values of judicial independence.

Maldives would continue to fully engage with the Working Group on enforced disappearance, including on the case of disappeared journalist Ahmed Rilwan.

Questions by Committee Experts

FELICE GAER, Committee Co-Rapporteur for Maldives, asked whether the Commission on Murders and Disappearances would also investigate acts of torture that did not amount to either a murder or disappearance, and noted that the jurisdiction of this Commission and other transnational justice mechanism was temporal and limited only to the period from 1 January 2012 to 17 November 2018.  The Human Rights Commission had found State negligence in the abuse and murder of a 10-year old boy – had anyone been held accountable?

ABDELWAHAB HANI, Committee Co-Rapporteur for Maldives, asked the delegation to explain what a “moratorium on corporal punishment” was and inquired whether there would be a review of judicial processes for individuals who had received death sentences for crimes committed as juveniles. 

Other Experts asked if the notion of special protection for children and youth contained in the Constitution also applied to juveniles in conflict with the law; if non-Muslims – citizens or visitors - could openly profess their faith; and whether detainees received an initial medical examination upon arrival at a criminal justice institution. 

Replies by the Delegation

Responding to questions raised on transitional justice mechanisms, the delegation explained that the President had pledged to establish a body to investigate human rights violations during the period from 1 January 2012 to 17 November 2018, which was still to be set up.  Maldives had already set up the Commission on Releasing Political Detainees, Commission on Murders and Disappearances, which would not be investigating cases of torture, and the Presidential Commission on Corruption and Asset Recovery.  As for temporality of the jurisdiction of the transitional justice mechanisms, the delegation said that it was limited to the recent past for the time being, but there was an intention to move to past crimes as well.

The authorities were committed to working with the Human Rights Commission on further investigating reports of children detained with the adult population.

The new Rights of the Child Bill introduced to Parliament in June 2018 contained the ban on corporal punishment and the Government would further review the Bill to ensure that it fully complied with the international obligations of Maldives under the Convention against Torture and the Convention on the Rights of the Child.  The legislation on anti-defamation and on anti-defection had been repealed, while the law on torture would be reviewed.

With the entry into force of the Criminal Procedure Code of 2016, it was now nearly impossible to keep a person in pre-trial detention, thus the rate of incarceration had reduced extensively. 

Concluding Remarks

AHMED NASEEM, Minister at the President’s Office of Maldives, in his concluding remarks thanked the Committee for its understanding and hoped that the Experts appreciated the commitment of Maldives toward implementing the Convention.  While constitutional protections and laws regarding torture had been improving, there had been a dramatic gap in their implementation, especially over the last five years.  The Minister reiterated the intention to eliminate all forms of miscarriages of justice.

JENS MODVIG, Committee Chairperson, thanked the delegation for their extensive replies and efforts.

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