The UN Working Group Opinion: Next Steps

The Republic of Maldives is a nascent democracy undergoing a period of transition. Notwithstanding the Government’s commitment to a process of reform so as to improve its legislative framework and practice in terms of democracy, human rights and rule of law, the image of the country is currently being debated in the international arena. A number of international personalities have attempted to tarnish the image of the Indian Ocean nation by criticizing the trial of former President Mohamed Nasheed, who was convicted of having ordered the abduction of judge Abdulla Mohamed, a sitting criminal court judge.

A Non-Binding Opinion

The Government of the Republic of Maldives remains committed to engaging in the work of the UN Human Rights Council as an active and engaging member. It is further committed to working with the UN Special Procedures Branch and, unlike certain States where human rights abuses are rampant, engages with the various mandate holders and has received Special Rapporteurs for in country visits.

The Government also actively engaged with the UN Working Group on Arbitrary Detention. Despite serious concerns over the opinion reached in the case of former President Mohamed Nasheed, the Government will continue to extend its cooperation to the Special Procedures. However, in the instant case it is a matter that remains pending before Maldives’ Supreme Court and it is that independent judicial body that will need to consider to what extent the WGAD’s opinion is taken into account when dealing with the Prosecutor General’s appeal.

Regarding the appeal, the Prosecutor General, having reviewed the matter, reached the view that there were legitimate concerns over the trial process that required determination by the appellate authority. The Prosecutor General initially appealed the matter before the High Court, acting partly on the request of the former President, but also exercising his discretion under the Maldivian Constitution. It is with regret that the former President did not avail himself of this opportunity. It is equally regrettable that the High Court rejected the admissibility of the appeal and then went on to consider the merits without hearing legal argument from either side. The Prosecutor General thereafter appealed this decision to the Supreme Court which is presently seized of the matter.

The Supreme Court will now need to take into account, in its determination of the appeal, the recent non-binding opinion of the WGAD. Although the former President’s legal team have argued that the Government is now legally obligated to enforce the WGAD’s opinion, the reality is that the Government is not bound by the opinion. There is argument to suggest that, as a State Party, there is an obligation to apply the International Covenant on Civil and Rights, even though in the absence of implementation legislation that position is not clear, but there is certainly no obligation to be bound by an opinion of the WGAD. It is also important to note that the recommendation of the WGAD to release the former President is just a recommendation. In the disposition section of the opinion the WGAD requests the Government “to take the necessary steps to remedy the situation of Mr. Nasheed without delay and being it into conformity with the standards and principles in the UDHR and ICCPR”. Consequently, the WGAD’s opinion can equally be followed by affording the former President a full right of appeal under conditions that satisfy Maldives’ international treaty obligations. The former President has been afforded that right and should avail himself of the opportunity.

It is notable that one of the prominent members of the former President’s legal team, Mr. Jared Genser, who has written extensively on the working practices of the WGAD wrote in his paper entitled ‘The Intersection of Politics and International Law: The United Nations Working Group on Arbitrary Detention in Theory and in Practice’:

“The United Nations Working Group on Arbitrary Detention (WGAD) is a body within the U.N. Human Rights Council that receives communications and issues opinions regarding the detention of individuals throughout the world. The WGAD’s methods are quasi-judicial, its opinions are non-binding, and it has no direct enforcement power of its own. Yet these and other flexible features of the WGAD are critical to its effectiveness, allowing it to provide a politically viable alternative to treaty-based human rights enforcement mechanisms.”

(see http://www.freedom-now.org/wp-content/uploads/2010/10/CHRLRArticle.pdf)

It must therefore be accepted that whilst an opinion of the WGAD may be used as a tool of political pressure, it has no enforcement mechanism of its own and States are not obliged to implement its findings. That being said, as mentioned above, the appeal process is now underway and the national authorities are committed to ensuring that such a process meets the appropriate standards and is properly monitored by the international community.

Consequently, while the opinion of the WGAD is a helpful international contribution, it is the Supreme Court that ought, in accordance with the rule of law, have the final word on the fairness of Mohamed Nasheed’s conviction.

An Inconclusive Opinion

The weight that is attached to the WGAD’s opinion by the Supreme Court is likely to be the subject of much debate.

Although the Government engaged with the process before the WGAD and responded exhaustively to the allegations raised by Mr. Nasheed’s legal representatives, the WGAD appears not to have taken into account any of the submissions of the Government, or paid due regard to the evidence submitted, and thus concerns regarding the objectivity of the WGAD’s opinion will need to be raised.

As an illustrative example, the WGAD did not take note of the prison conditions of the former President. Although Mr. Nasheed’s defence counsel alleged that the conditions of imprisonment were inadequate, the Government fairly responded and established that the prison conditions and facilities in Mr. Nasheed’s case are superior not only to national, but also to international standards. Yet, the WGAD found it appropriate not to include its conclusions on this particular topic in its final opinion. The WGAD chose to adopt the unsubstantiated position advanced by the petitioner without further inquiry and that is deeply regrettable. Should the WGAD have been unable to accept the detailed reports, prison visit logs and photographic evidence submitted by the Government then it should have either requested the Government for further clarification or requested to visit the facilities. The Government has granted a number of requests including with a journalist from a leading western newspaper who was given full access to the former President and his place of incarceration.

The WGAD has rejected all the legal and factual arguments presented by the Government even if they were justified by documentary evidence, which invites the question whether the WGAD has considered the material in sufficient detail. It is accepted that while the Government’s arguments were correctly summarized in the opinion, none of these arguments were the object of sufficient discussion in the final opinion of the WGAD. For every reader of the opinion, it would be clear that the Government has presented strong arguments in defence of the conviction, arguments that are not simply “myths and denials”, as the former President’s international legal advisors have recently suggested. Nevertheless, the WGAD directly dismissed the submissions of the Government without giving factual or legal grounds to justify the decision, as would have been expected from a case of such a political level and international scrutiny.

Next step: respect for the rule of law

 It is completely unacceptable that the opinion of the WGAD, on such an exceptional case, could serve to infer the unfairness of other detentions in Maldives and put into question the legitimacy of the judicial system, as has been suggested by members of the international legal team. Calls for travel bans and international sanctions against the State of Maldives are irresponsible and inappropriate in equal measure, as they would only inflict suffering on the collective of the population for a case that is still being reviewed by the domestic courts.

Further, the former President’s legal team appear to have presented an inconsistent position. The initial plea, or more appropriately put, threat, was that if the former President was not released by Government then sanctions would be pursued. However, having had the issue of appropriateness raised, the stance now adopted has shifted to that those sanctions would be called for in relation to the detention of a number of other detainees they deem to be held as ‘political prisoners’. This constant ‘shifting of the goalposts’ is indicative of the approach taken to this case. Again, we must consider the refusal of the former President to exercise his right to appeal, and when that appeal was eventually filed by the Prosecutor General, the former President, rather than seize the opportunity, sought to undermine the process by arguing that the Prosecutor General had no right to file such an appeal – not forgetting that it was the former President who requested, in writing, that he take such action.

Until this moment, the only fact that has been judicially established is that the former President committed a very serious criminal offence during his time in presidency. Justice demands that he be held accountable for this crime.

The Government must respect the rule of law in every case, even when the law applies to former heads of state. In accordance with this respect for the rule of law and for the separation of powers, any exceptional measure, such as a presidential pardon—a measure that has been requested by Mr. Nasheed’s counsel—should, in any case, follow the existing legal framework, namely once all avenues of appeal have been exhausted. Otherwise, it would constitute an arbitrary intervention of the executive in a judicial process and the end of equality before the law in the Maldives.

Toby Cadman is a partner at Omnia Strategy, a legal firm employed by the Maldivian government to respond to the UN working group on arbitrary detention on former President Mohamed Nasheed’s imprisonment.

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