Human Rights and Transitional Justice in the Maldives: Closing the Door, Once and For All?

NHRIs are domestic institutions ‘established by governments under the constitution, or by law or decree’ and which are specifically designed to promote and protect human rights (UN 1995: 6). Governed by the Paris Principles (1991), a non-binding international agreement designed to codify their nature, functions, and guiding principles, they take a multitude of different forms, including human rights commissions and human rights ombudspersons.

In recent years, an increasing number of NHRIs have been engaged in transitional justice processes. Although they were not originally intended to be transitional justice institutions, this development is unsurprising. NHRIs and transitional justice share a common genesis story: both represent responses to demands for accountability for human rights violations that accompanied the wave of democratic transitions that began in the 1970s (author). While transitional justice was conceived as a means of providing accountability for human rights violations perpetrated by past repressive regimes, human rights commissions and ombudspersons were designed to hold new democratic governments to account. As transitional justice has expanded beyond retributive forms of accountability to incorporate restorative and reparative elements of justice and to provide guarantees of non-repetition, it makes sense that institutions with specific remits to protect and promote human rights might be included in its orbit. By the late 2000s, the United Nations and its agencies had begun advocating for the greater inclusion of NHRIs in transitional justice. NHRIs, they argued, ‘can play an important role’ in transitional justice processes by ‘ensuring accountability and combatting impunity’ (OHCHR/UNDP 2010: 48; OHCHR 2008: 11).

In practical terms, the most common role undertaken by NHRIs during transitional justice processes has involved investigating and documenting human rights violations perpetrated by previous regimes, either independently or by contributing to the activities of a truth and reconciliation commission. For example, NHRIs in Uruguay, Honduras, and Mexico have all been afforded or assumed responsibility for uncovering the truth about enforced disappearances perpetrated by their country’s former authoritarian regime (Human Rights Watch 2008). Others, in Liberia, Sierra Leone, and Nepal, have been made responsible for monitoring or implementing recommendations included in TRC reports, while in Colombia, the Defensoria del Pueblo has participated in several commissions of inquiry and truth commissions designed to uncover the truth about past human rights violations (Tate 2007). Beyond their common truth-seeking roles, Meyer et al.’s (2017) study of institutions in Brazil, Colombia, Ecuador, and Guatemala has also identified a range of other contributions that ombudspersons and ombuds institutions make to transitional justice, extending from participation in prosecutorial processes and the provision of victim support services to the management of reparations and the preservation of documents and archives.

In terms of their mandates, operation, and functions, NHRIs engaged in transitional justice often closely resemble TRCs. Both are institutions charged, in the broadest terms, with promoting and protecting human rights (Paris Principles 1991). Notwithstanding considerable debate over the specific details of their definition, a TRC can be generally conceived as a ‘temporary body, set up by an official authority (president/parliament) to investigate a pattern of gross human rights violations committed over a period of time in the past, with a view to issuing a public report, which includes victims’ data and recommendations for justice and reconciliation’ (Bronkhorst 2004: 5–6, emphasis original). As Jeffery and Mollica (2017) note, TRCs thus tend to perform several functions: investigating past human rights violations, acknowledging the truth about human rights abuses, publicising their findings, and making recommendations for reform. They perform both backward and forward-looking functions, seeking to address the harms caused by past human rights violations, and prevent their repetition in the future (Jeffery and Mollica 2017: 4). In common with TRCs, ombuds institutions assigned transitional justice mandates are official institutions, charged with investigating human rights complaints, publicising their findings, and making recommendations to prevent their recurrence.

In common with one another, TRCs and ombuds institutions are both victim-centred mechanisms that are primarily driven by the premise, not that the law has been broken but that individuals’ rights have been violated. To that end, during transitional justice processes, both may contribute to fulfilling the rights of victims set out in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law to:

At the individual level, the right to information extends to both victims and their families a right to know the truth about human rights violations ‘including the identity of the perpetrators and the causes, facts, and circumstances in which such violations took place’ (United Nations Commission on Human Rights 2005). By receiving individual complaints, gathering testimonies, and using their investigative powers, both TRCs and ombuds institutions contribute to uncovering the truth about human rights violations perpetrated against individuals. While the collective right to truth may be more strongly associated with TRCs, in line with their mandate to investigate patterns of violations, ombuds institutions may also identify patterns of abuse in the course of their investigations into individual complaints and, on that basis, engage in systematic investigations (Reif 2004: 17).

In one sense, both TRCs and ombuds institutions may be conceived as complementary justice mechanisms. Depending on their mandates, they may have the power to refer cases for prosecution or, in the case of some ombudspersons, pursue prosecution themselves (Reif 2011: 268). More obviously, however, ombuds institutions and TRC both serve as alternative forms of justice or accountability in ‘situations where judicial proceedings are unavailable or unrealistic’ (Reif 2004: 13). In the context of transitional justice, where a large volume of cases is often coupled with a lack of capacity in the judicial system, both TRCs and ombuds institutions thus provide means for victims to access some form of justice for the wrongs they have suffered.

Lastly, both TRCs and ombuds institutions may contribute to upholding the right to reparations held by victims of human rights violations. Although the scope of their reparative mandates and capacities to award reparations vary considerably, both types of institutions may provide or contribute to the forms of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. They may achieve this directly, by designing and implementing reparations programs or, indirectly, by ordering other responsible agencies to provide forms of reparations to victims, or by making recommendations for changes to policy and practice to ensure such violations are not repeated in the future.

Despite these similarities, there are several important differences between TRCs and ombuds institutions (Reif 2004: 23). With their ‘wide-ranging investigative powers’, which provide ‘unique access to government documents and officials’, ombudsperson institutions are often the most ‘effective investigatory body operating’ in the state (Hatchard 1991: 938). That said, while TRCs may tend to be more limited in their mandates and jurisdiction than ombuds institutions in practice, this is primarily an issue of design. There is no necessary reason why TRCs cannot be granted wide-ranging mandates and jurisdictions nor, as the existence of specialised institutions reveals (see, for example, the Ombudsman for the Rights of Minorities in Hungary), ombuds institutions instituted with more limited frames of operation and authority. Perhaps more significant, then, are differences in the powers of ombuds institutions and TRCs to resolve and provide reparations for individual complaints. While both institutions investigate individual cases of human rights violations and may be mandated to provide reparations to victims of abuse, where ombudspersons tend to focus on the provision of individual reparations in the form of restitution, compensation, and rehabilitation, TRCs often award collective reparations, in addition to or in place of individual awards.

A further difference between TRCs and ombuds institutions relates to their place in the institutional architecture of the state. In contrast to truth commissions, which are typically ‘established for a temporary period of time to investigate past abuses’, ombuds institutions are ordinarily designed as permanent institutions (Reif 2004: 23). What is more, ombudspersons tend to operate under the broad umbrella mandate to protect and promote human rights, taking on transitional justice roles as additional responsibilities. While they may, and in many cases have been ‘empowered to receive and investigate complaints about human rights abuses committed under a prior abusive regime’, these functions do not represent the entirety of their work (Reif 2004: 23). In 2020, however, the Maldives established a temporary ombuds institution mandated only to provide transitional justice and which, in many ways, looks like a TRC. On the face of it at least, this appears to constitute a new type of transitional justice mechanism.

The Maldives 2008 transition was neither its first attempt at democratisation nor its first political transition. In 1932, Sultan Mohammed Shamsuddeen III promulgated the Maldives’ first constitution. At its centre were two key provisions. The first specified that the position of sultan would no longer be hereditary, as it had been for more than 800 years, but elected, while the second embedded Islam in the domestic law of the Maldives, making it ‘the only entirely Muslim country’ in the world (Falaah 2022). Despite the first of these provisions, the hereditary sultanate remained in place until it was abolished in 1953. In the two decades that elapsed in the meantime, five further constitutions were promulgated. In 1952, Mohamed Amin Didi was elected sultan by the Maldives parliament. Declining the post, however, he brought on a referendum which saw the Maldives abolish the sultanate and become a republic. In its wake, on 1 January 1953, Didi became the first president of the Maldives.

Within a few short months, President Didi’s reform agenda had ‘brought sweeping reforms to the country’s governance and education systems’, introduced girls’ education in Malé and instituted policies designed to allow women to assume a more prominent place in Maldivian society (Mohamed 2021). However, these developments were intolerable to ‘conservative-minded religious scholars and businessmen’ and just 8 months into his tenure, he was overthrown in a coup while out of the country (Zubair 2013: 5). On his return, Didi was captured and incarcerated on Dhoonidhoo Island. Although he managed to escape imprisonment, he was ultimately ‘handed over to the angry mob’ and brutally tortured. He eventually died from his injuries on 19 January 1954. Two months later, the sultanate was re-established and King Muhammad Fareed Didi enthroned. He remained in that position until he was deposed in 1968.

By 1965, the Maldives had achieved independence and left the Commonwealth. Three years later, it became a republic once more. With no political parties permitted, however, the country remained an autocracy (Maloney 1976: 657). Former prime minister Ibrahim Nasir was elected president by the Majlis, a position he held until his retirement in 1978. As president, Nasir gained a reputation for repressing opposition to his policies and leadership, imposing harsh penalties, including exile and banishment, on his political opponents. In his previous role as the country’s Prime Minister, he was also responsible for the violent suppression of separatist movements that sprung up in the Maldives’ southern atolls and the forced depopulation of their communities. In 1978, Nasir was replaced by Maumoon Abdul Gayoom. Fending off three unsuccessful coup attempts, in 1980, 1983, and 1988, Gayoom held onto power for three decades, winning each of the presidential elections in 1983, 1988, and 1993 by more than 95% of the vote (Metz 1994). That said, with opposition parties prohibited by law, these were in no way democratic elections indicative of the will of the people.

Although the Gayoom regime ushered in a period of significant economic development, centred on the country’s tourism industry, dissent was brutally quashed by a repressive state apparatus. Along with the widespread use of torture in the country’s prisons, this period also saw a spate of extrajudicial executions and the continued exiling and banishment of the president’s political opponents. In addition, already limited rights to freedom of expression were wound back even further under Gayoom’s rule, politically outspoken publications being banned (Amnesty International 2003: 3). In 1993, Gayoom won his fourth 5-year term as president. This time, however, he ‘was not the parliament’s unanimous choice for president’ (Amnesty International 1995: 2). His rival, Ilyas Ibrahim, who was out of the country at the time, was accused of using ‘irregular means in his bid for power’, charged with ‘violating the Constitution and breaking his ministerial oath’, and sentenced to 15 years banishment (Amnesty International 1995: 2). Twenty-two of his supporters were also arrested, 16 of whom were convicted for liaising with Ibrahim and faced sentences of banishment for between 1 and 7 years. During the same election period, Ahamed Didi was arrested for standing against the ‘government-backed candidate’ in his seat and spent a month in detention, another prospective candidate was arrested prior to the ballot despite having obtained court permission to contest the election, only to be released without charge once the results were finalised, between 30 and 40 supporters of opposition candidates were detained, and several journalists were arrested and tried on spurious charges (Amnesty International 1995: 3–5).

It was not until a new constitution was promulgated in 1997 that rival candidates were permitted to compete for nomination to the presidency. Despite this development, however, the repression of political opposition remained a feature of Maldivian politics. In July 2003, Amnesty International published a report accusing the Maldives of repressing peaceful political opposition through practices of arbitrary detention and torture. It noted that in ‘the past decade, dozens of people—including politicians, journalists and others protesting government policies—have been detained arbitrarily in defiance of their fundamental right to freedom of expression and assembly’ (Amnesty International 2003: 1). It highlighted several cases in which ‘prisoners of conscience’ had been tried and convicted ‘without having access to a lawyer, or to an independent and impartial appeal mechanism’ and detailed multiple instances of torture at Dhoonidhoo prison (Amnesty International 2003: 1 & 6–8). Less than 2 months after Amnesty had published its report, however, a far more dramatic and significant turn of events had begun to unfold ‘that led the Maldives to accept international human rights norms and revise the Constitution. It also led the Maldives to embrace pluralistic democracy leading to the fall of [Gayoom’s] thirty-year dictatorial regime in 2008’ (Didi 2012: i). Those events centred on the killing of four inmates at Maafushi Prison.

On 19 September 2003, Evan Naseem, a 19-year-old who had been charged with drugs-related offences, was tortured and killed by guards at Maafushi prison. As news of his death filtered out, crowds began to gather ‘in large numbers at the cemetery in Malé for his funeral’ (Amnesty International 2006). At Maafushi prison, the news sparked a riot during which ‘security guards opened fire’, killing at least one prisoner and injuring eighteen more (Didi 2012: 1). Among the injured, sixteen were seriously wounded while two later died from their injuries. As a photojournalist, Jennifer Latheef, recounted, ‘[n]ow the collective anger and horror slowly mounted until an entire community stood up to voice their protest against the brutality’ (in Amnesty International 2006). What had begun as a demonstration against prison deaths soon developed into general anti-government protests with thousands of people taking to the streets. Angry crowds attacked the parliament building with stones and set fire to government cars, police stations, and the electoral commission building, and dozens of protestors were arrested (Amnesty International 2006).

Appealing for calm, President Gayoom promised to establish a Presidential Inquiry into the prison riots. On 29 December 2003, it submitted its ‘Investigative Findings on the Death of Evan Naseem’. It named twelve prison guards responsible for the incident, specifying each person’s level of responsibility for Naseem’s torture and death (Presidential Commission of Inquiry 2004: 4.1; 5.1.11). It also named the commanding officer responsible for ordering guards to open fire on the rioting prisoners (Minivan News 24 August 2011). Although the Commission’s report was heavily censored, its findings resulted in the prosecution and punishment of those immediately responsible for Naseem’s death. The 12 prison guards were sentenced to death, although their sentences were commuted to 25 years imprisonment, while their commanding officer was granted clemency by President Gayoom (Minivan News 2011). With much of the report heavily redacted, however, it remains unclear whether more prominent individuals were also implicated in the events that transpired.

At around the same time that the Commission of Inquiry released its findings, a report written by an official at Maafushi jail before Evan Naseem’s death was leaked (Redress 2012: 9). Produced in July 2003, that report ‘warned of the institutionalised and officially overseen use of beatings and other forms of torture by national security service personnel within prisons, and…cautioned that action needed to be taken’ (Redress 2012: 9–10). As a study of patterns of torture in the Maldives between 1978 and 2008 based on the testimonies of 100 torture victims found, during the decades of authoritarian rule ‘torture and ill-treatment by the security services was widespread and systematic’ in the Maldives (Redress 2012: 1).

It is widely accepted that Naseem’s death and the public protests that followed marked ‘an historic turning point after which a series of significant reforms were possible’ in the Maldives (International Commission of Jurists 2011: 7). Although Gayoom was returned to power, winning his sixth consecutive presidential election in October 2003 with 90.28% of the vote, several democratic reforms were introduced. In July 2004, a Special Majlis was ‘convened to reform the Constitution’, in September the police force was separated from the security services and became a civilian service, and in December 2004, the Human Rights Commission of the Maldives was established (Redress 2012: 10). In the same year, the Maldives became a party to the Convention Against Torture and the International Covenant on Civil and Political Rights and, in June 2005, political parties were allowed to register for the first time in the Maldives’ history. By then, however, a new wave of protests had erupted, calling for human rights protections and more extensive democratic reforms, and provoking renewed efforts by the government and security services to quash dissent.

The 2003 prison deaths also ‘gave life to the country’s burgeoning democratic movement’ (Mohamed 2021). Its first protest, which started on 12 August 2004, was precipitated by the arrests of two activists who had called on Gayoom to resign and three others who had videoed their public debate. As Vidal (15 August 2004) notes, ‘what started as a vigil for five arrested political reformists on Thursday night became a mass gathering of people demanding democracy, the release of prisoners, and the resignation of cabinet ministers and the president’. By the following day, an estimated 20,000 people, one-quarter of Malé’s population, had taken to the streets in what became known the Black Friday protests. Their demands were met with teargas, batons, and rubber bullets. Activists’ houses were raided, a phone and internet blackout was imposed, and a state of emergency was declared. Two hundred eleven demonstrators, activists and politicians were arrested. Although most were released in the weeks that followed (Aljazeera 2004) and Gayoom pardoned those who were convicted ‘in the spirit of “national unity”’ in 2005, advocates of democracy continued to face persecution (Mohamed 2021).

On the first anniversary of the Black Friday protest, demonstrators gathered once more. Again, a peaceful protest descended into violence after riot police and the military were deployed to disperse the crowd. Hundreds of protesters were detained, eyewitness testimonies suggesting that the ‘riot police knowingly inflicted injuries on detainees when making their arrests’ (in Mohamed 2021). A week later, at least 140 demonstrators remained in detention. Among their number were several high-profile democracy activists and journalists, including the chair of the newly formed Maldivian Democratic Party, Mohamed Nasheed (International Federation of Journalists 2005). On 22 August 2005, Nasheed was charged with sedition and terrorism under what the Asian Human Rights Commission (2005) described as ‘very suspicious circumstances’. This was not the first time Nasheed had been arrested: he was imprisoned 23 times during the Gayoom regime, tortured, and on one occasion spent 18 months in solitary confinement (Human Rights Watch 2018). By the end of the year most of the demonstrators had been released, although Nasheed remained under house arrest.

Although the Gayoom administration had entered ‘another vortex of repression’ (Mohamed 2021) efforts at democratisation continued. The momentum of the democratisation movement and the willingness of the government to engage in the democratic reform process has largely been attributed to the power of the street protests (Moorthy 2012). In March 2006, the government presented a ‘Roadmap for Reform’. Among its eight key elements, it included provisions for ‘promoting and strengthening human rights’, ‘enhancing the independence of the judiciary’, ‘a more independent media’, and ‘modernization of the electoral system’ (in Najeeb and Barrett 2016).

On 7 August 2008, President Gayoom ratified the Maldives’ new constitution. Described as ‘a radical departure’ from the country’s previous constitutions (Zulfa 2017), it ‘paved the way for the first multiparty presidential elections’ as well as mandating ‘a separation of powers between the branches of state, establishing an independent judiciary and freeing the legislature from executive control’ (Human Rights Watch 2018). After two rounds of voting, on 30 October 2008, Mohamed Nasheed became the Maldives’ first directly elected president, winning 54% of the vote and bringing an end to Gayoom’s 40-year rule.

On 7 February 2012, President Nasheed resigned. Although his resignation was presented in terms of an orderly transfer of power to protect the country’s newly established democratic credentials, it was effectively a coup. For almost 3 months, a movement of conservative clerics, their supporters, and opposition politicians, including from the religiously conservative Adhaalath Party, had been engaged in a series of rallies in defence of Islam against Nasheed’s presidency (Moorthy 2012). Also exercising the minds of opposition politicians was the prospect of further judicial reforms. To that end, Robinson notes that the coup ‘was not a democratic “hiccup”’ but rather a ‘cynical reaction’ on the part of the former regime to the ‘prospect of judicial reform’ (2016: 224). Fearing that reforms proposed by the Nasheed government would see it lose its ‘judicial impunity’ and bring forth prosecutions for corruption and human rights violations, ‘the former regime abused both its parliamentary majority and control of the judicial watchdog to ensure one of the new democracy’s core foundations—an independent judiciary—was rotten’ (Robinson 2016: 224). This would prove valuable to pursuing its interests in the post-coup era.

The issue ultimately came to a head when, on 16 January 2012, Nasheed ordered the arrest of the Chief Justice of the Criminal Court, Abdullah Mohamed, on charges of ‘failing to follow due process, disregarding higher court decisions, delaying cases involving opposition party members, and improperly releasing suspected of serious crimes without hearing’ (International Commission of Jurists and South Asians for Human Rights 2015: 13). At immediate issue was Justice Mohamed’s decision to release ‘an opposition leader who had been detained without a warrant for allegedly defaming the government’ (The Guardian 2012). Nasheed’s actions were condemned as ‘an act of executive interference’ and served to further fuel anti-government protests (International Commission of Jurists and South Asians for Human Rights 2015: 13). After violence erupted and a substantial sector of the police force mutinied, Nasheed resigned, saying that the security forces had threatened a ‘blood bath’ if he did not (Aljazeera 2012). On the same day, his vice-president, Mohamed Waheed, was sworn in as president.

In the weeks and months that followed, the Maldives experienced a significant upsurge in human rights violations. Protests against the ‘coup regime’ were met with violent resistance from members of the police and security forces. In a report submitted to the UN Human Rights Committee that included the testimonies of fifteen protesters brutalised by the police, Mariya Ali (2012) documented the systematic use of physical and psychological torture by the security forces between February and June that year. In response, the Human Rights Committee ‘expressed serious concern about systematic torture and the lack of a mechanism to investigate accusations of torture’ before calling on the government to ‘investigate all allegations of torture that took place at the time of the demonstrations of February 8, 2012’ and to ‘prosecute those responsible, and provide compensation and rehabilitation to the victims’ (OHCHR 2012). On 30 August, the Commission of National Inquiry convened to enquire into events surrounding the February transfer of power released its report. It found that there was sufficient evidence of ‘acts of police brutality’ during the power transfer and argued that these ‘must be investigated and pursued further by the relevant authorities’ (in Ali 2012: 4). The Human Rights Commission of the Maldives also undertook an independent investigation and ‘concluded that the Police had used excessive force in dispersing the protestors, which violates the Maldives constitution and international covenants’ (Ali 2012: 5). Despite these findings, no further action was taken to bring the perpetrators of human rights violations to justice.

After a protracted process that saw the results of the first round of voting annulled by the Supreme Court, in November 2013, Abdulla Yameen Abdul Gayoom was elected President. Yameen, the half-brother of former President Gayoom, won the run-off vote with a narrow 2.7% margin over former President Nasheed, who accepted defeat. The Yameen presidency saw an escalation of ‘threats and violence against prominent Maldivian activists, politicians and journalists’ and the increased suppression of human rights (Human Rights Watch 2022). In September 2014, the Supreme Court charged all five members of the Human Rights Commission of the Maldives (HRCM) with treason and, in its 16 June 2015 judgment ‘banned it from communicating with the UN without government authorisation’ (International Service for Human Rights 2015). At issue was a report submitted by the HRCM during the Maldives’ UPR highlighted a lack of judicial independence in the Maldives, claimed that the Supreme Court was working to weaken the ‘judicial powers vested in other superior and lower courts’, and detailed ongoing human rights violations in the country, including 304 cases of torture reported between 2010 and July 2014 (HRCM 2014: 8 & 4). The Supreme Court responded by declaring the HCRM’s UPR submission as ‘unlawful, biased, encouraging terrorism, and undermining judicial independence’ (International Commission of Jurists 2015: 16). In response, the UN Special Rapporteurs on the independence of judges and lawyers, and on the situation of human rights defenders denounced the Supreme Court’s judgment as ‘purely and simply an act of reprisal against the Human Rights Commission for its legitimate cooperation with the UN human rights system and its mechanisms’ (OHCHR 2015). This act, they concluded, was ‘an attempt to strip’ the HRC of its independence and to limit its ability to protect and promote human rights in the Maldives (OHCHR 2015).

Earlier in 2015, former President Nasheed had been tried and sentenced to 13 years imprisonment on terrorism charges for ‘the dismissal and alleged unlawful detention of the Chief Judge of the Criminal Court’ in 2012 (International Commission of Jurists 2015). According to a report compiled by the International Commission of Jurists (2015), the trial was not only ‘grossly unfair’ but marked ‘a significant deterioration in the independence and impartiality of the country’s judiciary’. The United Nations also called it a ‘vastly unfair trial’, condemning the outcome as an ‘arbitrary and disproportionate’ conviction (DW 2015). It also sparked a renewed round of public protests. May Day protests calling for Nasheed’s release saw 193 demonstrators arrested after violent clashes with the police. With the escalation of the protest movement and following an attempt on his life—the second assassination attempt he had faced since September—on 4 November 2015, President Yameen declared a 30-day state of emergency, suspending all basic rights and giving the security services wide ranging powers to arrest the organisers of a further opposition rally planned for later that month. In response to international condemnation and concerns over its potential impact on the tourism industry, it was lifted 1 week later. International pressure also saw an agreement reached to allow Nasheed to travel to the UK to undergo spinal surgery (Human Rights Watch 2018). Although it stipulated that he must return within 30 days to complete the rest of his prison term, on arriving in London Nasheed was granted asylum.

By the time Nasheed arrived in London, the Maldives had already withdrawn from the Commonwealth. At the Commonwealth Heads of Government Meeting (CHOGM) held in Malta in November 2015, the Commonwealth Ministerial Action Group (CMAG), ‘placed Maldives on its formal agenda’ and determined to send a delegation to visit in the new year (Reddy and Dzenisevich 2016: 325). A Commonwealth Human Rights Initiative fact-finding mission also found evidence of ‘a clear slide to authoritarianism, generously peppered with illustrations of widespread police violence and intimidation, as well as a flagrant disregard for the rule of law, human rights, good governance, and separation of powers’ (Reddy and Dzenisevich 2016: 326). In February 2016, the CMAG outlined six priority areas for progress in the Maldives, meeting three times throughout the year to discuss the country’s ‘deteriorating standards of democracy and human rights’ (Radhakrishnan 2016: 4). Despite international pressure, little to no progress was made on improving the human rights situation. Rather, the Maldives government responded to the Commonwealth’s entreaties by passing a new law that restricted protests and gatherings to certain areas, reducing the number of registered members of political parties as a means of reducing the number of political parties from sixteen to six, refusing to release ‘state-sanctioned funds for political parties’ and passing a new Defamation Act to further curtail freedom of the press (Radhakrishnan 2016: 5). Described as ‘the death knell for democratic freedoms’, the Defamation Act ‘elicited widespread condemnation from the international community and civil society groups’ (Radhakrishnan 2016: 5). Undeterred by the chorus of international condemnation and threats of suspension, however, the Maldives simply withdrew from the Commonwealth.

By early 2018, the Maldives had plunged into another period of political crisis, this time precipitated by a ruling handed down by the Supreme Court which quashed the convictions of nine opposition politicians. The Yameen government, however, not only refused to release the prisoners but arrested two justices of the Supreme Court, including the Chief Justice, and former President Gayoom, Yameen’s estranged half-brother whom he accused of plotting against his government. Accordingly, the now three-person bench of the Supreme Court annulled those sections of the previous ruling calling for the release and retrial of the imprisoned opposition members. With demonstrators taking to the streets to protest for the release of the opposition politicians, Yameen instituted another state of emergency. Condemned by the UN High Commissioner for Human Rights, Zeid Ra-ad Al Hussein as an ‘all-out assault on democracy’ (OHCHR 2018), the government’s decision to suspend basic rights drew widespread international criticism and threats of targeted sanctions in the form of asset freezes and travel bans ‘against individuals and entities responsible for undermining the rule of law, committing human rights violations, or obstructing an inclusive political solution’ (Human Rights Watch 2018). Undeterred, the government sanctioned mass arbitrary arrests of protestors, and in June 2018, Gayoom was sentenced to 19 months’ imprisonment for the obstruction of justice, while terrorism charges against him remained pending.

In a surprising turn of events and despite widespread belief that the election was rigged in his favour, President Yameen lost the September 2018 election. The winner was Ibrahim Mohamed Solih, a member of the Maldivian Democratic Party, and representative of four opposition groups whose leaders were either in detention or in exile. Solih came to power on ‘promises of reform’, having ‘vowed to restore fundamental human rights eroded by longstanding authoritarian rule’ (Human Rights Watch 2022). Within a week of the poll, Gayoom had been released from detention.

As debate about the introduction of a transitional justice mechanism gathered pace in the Maldives, civil society groups also raised the issue of temporal jurisdiction. In 2018, the Maldivian Democracy Network (MDN) called for the development of a ‘holistic and inclusive’ transitional justice process (Mohamed 2020). Yet, when the government tabled a draft Transitional Justice Bill in October 2019, the jurisdiction of the proposed mechanism remained limited to the 6-year period between 2012 and 2018. In a joint submission with the International Federation for Human Rights (IFHR) to the Maldives’ Universal Periodic Review later that month, the MDN raised concerns that the proposed legislation did not ‘address human rights violations committed before 1 January 2012’ and, if passed ‘would result in impunity for abuses perpetrated under previous governments, such as the administration under former President Maumoon Abdul Gayoom from 1978 to 2008’ (IFHR and MDN 2019: 39). Others called for even earlier incidents, including the torture and death of former President Amin Didi and mass atrocities perpetrated against members of the Suvadive separatist movement and the atolls it represented in the 1950s and 60 s, to be included in any transitional justice process. Those atrocities included the torture and killing of several separatist leaders, as well as the forced depopulation and destruction of all houses, property, and infrastructure on the island of Thinadhoo.

On 17 December 2020, the parliament passed the Transitional Justice Act (Act 28/2020), the purpose of which is ‘to seek recognition for victims of violations of human rights and fundamental freedoms and provide peace, reconciliation, and reparations while taking along institutional reforms to ensure such violations do not repeat in the future’ (OOTJ 2023a). Bowing to pressure from members of the human rights and civil society communities, and in an effort to close the door on the full range of historical grievances that continued to jeopardise political stability, the temporal scope covered by the act extends from 1953 to 2018 (Mohamed 2021). Unusually, the institution established to enact the Maldives’ transitional justice process was an Ombudsperson’s Office for Transitional Justice.

As an ombuds institution, the OTJ was charged with investigating ‘past wrongdoings by state authorities, heads of agencies, or individuals in power, which resulted in human rights violations’ (OTJ 2023b). Focusing on complaints submitted by individual victims of human rights abuses, it attempted, following investigation, to resolve cases through mediation or, failing that, to refer them for civil or criminal prosecution. Both the OTJ’s mandate and operation appeared to afford it some degree of independence, particularly in terms of setting its own agenda and determining which cases to prioritise. To those ends, in June 2021, Ombudsperson Jihadha Anees argued that its most important work would be in ‘providing corrective changes to institutions based on investigations’ (Areeba 2021). It was for this reason, she explained, that the office had decided to give priority to investigating and resolving ‘older cases and cases with crimes against humanity’ (Areeba 2021). It is important to note, however, that the OTJ’s independence was limited by the requirement to submit recommendations for prosecution to the Attorney-General which, as demonstrated in other cases (Jeffery and Timilsina 2021), leaves open the possibility of political interference in the justice process. In particular, this requirement left the ultimate decision to prosecute perpetrators of human rights violations not with the OTJ but in the hands of a political actor who could, despite the OTJ’s evidence and recommendation, choose not to pursue politically inconvenient cases.

Among the main reasons offered by interviewees for framing the Maldives’ transitional justice mechanism as an ombudsperson’s institution was the broad scope of complaints it could receive. Rather than being connected to a specific conflict or period of government, the OTJ is empowered to receive all complaints about government conduct leading to a human rights violation between 1953 and 2018. After opening for submissions for 3 months between 13 June and 13 September 2021, the OTJ received 489 complaints, of which 455 were within its mandate. A year later, it announced that it had ‘probed 542 cases’ and conducted investigations in more than half of all cases (PSM News 2022). Of these, 59 cases were related to housing issues, followed closely by complaints related to employment and freedom of expression (Zunaam 2021). By 1 June 2023, the OTJ had announced that it had concluded its investigations in 141 cases including:

82 cases related to economic and social rights, 37 cases related to right to work, 07 cases related to the right to acquire and hold property, 06 cases related to right of pension, 04 cases related to the right to fair and transparent hearings, 02 cases related to no unlawful arrest or detention and one case each related to compensation, freedom of assembly and privacy. (OTJ 2023c).

In short, the wide scope of the OTJ allowed it to investigate violations of social, economic, and civil rights alongside breaches of physical integrity rights under the broad umbrella of human rights.

Although the OTJ was a forum for addressing a wide range of human rights-related grievances, its most prominent cases were those related to the perpetration of gross violations of human rights or crimes against humanity, among them the depopulation of Thinadhoo and the use of torture in prisons (PSM News 2022). In March 2022, the OTJ held 3 days of public hearings on the Thinadhoo case followed, in November that year by 10 days of closed hearings on the case (OTJ 2022a; 2022b). In 2023, it turned its attention to human rights violations, inhuman treatment and torture in Maldivian prisons, including Maafushi prison, holding a series of closed hearings and focus group meetings to ‘disclose the stories of victims, urge the relevant authorities to seek justice for victims, reveal the truth about past human rights’ violations, gather information, and raise public awareness (OTJ 2023d; 2023e).

Despite its name and these features, however, to all intents and purposes, the OTJ looked and functioned like a TRC. Like TRCs and in contrast to ombuds institutions, the OTJ was a temporary institution, initially established for a 2-year period with a 1-year extension granted in November 2022. Although its emphasis was on the investigation of individual complaints, the OTJ (2023a) made it clear that as a transitional justice institution its mandate is to ‘look into systematic human rights violations which may result in bringing transformations to the political systems, conflicts, and other conditions that may have been the root cause of the abuses, while providing redress to the victim and promoting reconciliation with the society’. To that end, it was concerned with identifying patterns of abuses for the purposes of redressing their consequences and preventing their recurrence. It was also concerned with establishing the truth about past abuses by ‘collecting statements from victims and witnesses, conducting thematic research and analysis of violations of human rights, including their causes and consequences, organizing public hearings and other awareness programs’ and, like many TRCs, ‘publishing a final report outlining findings and recommendations’ (OTJ 2023b).

In the interests of compiling a comprehensive account of the Maldives’ human rights history, in August 2022, the OTJ held focus group discussions on the case of former President Mohamed Amin. The purpose was to gather information about events surrounding the ‘collapse of his administration’ and death, to be used in the OTJ’s ‘final report and as a source of recommendation for non-recurrence of such human rights violations’ (OTJ 2022c). In line with the normal practices of TRC, the OTJ also organised public hearings, both to gather further information about human rights violations and ‘to provide the victims of injustices the opportunity to tell their stories publicly’ (OTJ 2022a). Lastly, and in common with both TRCs and ombuds institutions, the OTJ was empowered to ‘provide reparations to victims for acts which can be attributed to the State and constitute violations of human rights’ (OTJ 2023b). Those reparations could take the form of restitution, compensation, rehabilitation, judicial sanctions against persons liable for violations and, in line with many TRC outcomes, ‘commemorations and tributes to the victims’ in the form of memorials and other types of symbolic and collective reparations (OTJ 2023b).

Despite these promising signs of progress, however, the OTJ was ultimately unable to fulfil its lofty ambitions. On 30 September 2023, Mohamed Muizzu was elected president. Although the OTJ’s extension was due to expire within months of it taking office, the new government did not grant it a further extension. On the contrary, President Muizzu has almost entirely avoided the issues of transitional justice, human rights, and the OTJ, focusing his attention instead on economic development, climate change, and housing. The closest he has come to addressing the legacy of rights violations in his country’s past came in a recent commitment not to seek ‘politically motivated revenge’ (The President’s Office 2024). In his 2024 Presidential Address, Muizzi pledged to end politically motivated convictions and promised ‘not to interfere with the judiciary’ (The President’s Office 2024). He also pledged to ‘end de facto arrest’ and ‘indefinite detention’ and ‘to modernise the prison system to provide inmates with a compassionate environment for rehabilitation’ (The President’s Office 2024). As positive as these signs are for the protection of human rights in the Maldives’ future, however, they do not address its past.

On 18 November 2023, the OTJ was dissolved, and its hardware and documents were transferred to the Ministry of finance for storage. At the time, 100 cases remained pending. It remains unclear what, if anything, will be done to bring them to resolution. Given the current government’s apparent lack of interest in addressing past human rights violations, it is possible that they will simply lie dormant, perhaps until a future government decides to re-establish the OTJ and perhaps forever. With its work incomplete and no further budget allocated, it also seems unlikely that the OTJ’s final report will be produced. Given the volume of evidence the OTJ gathered, this represents a missed opportunity for the Maldives to acknowledge the truth about its repressive past and pursue reforms to prevent its recurrence.

In broader terms, the case of the Maldives may also provide a cautionary tale for other countries attempting to institute comprehensive transitional justice processes. In its effort to close the door on its past once and for all, the Maldives afforded the OTJ a mandate that was both temporally vast and, in terms of the abuses it was authorised to investigate, insufficiently precise. As Mariyam Laiza, one of the original three ombudspersons appointed to the OTJ explained, ‘the concept of systematic violations is vague in the Act, which does not give a clear legal definition’ (in Crawford 2023). As a result, much of the OTJ’s time was taken up with investigating disputes over access to housing schemes. Although housing is a human right and one that is certainly deserving of attention in the Maldives, focusing on this issue diverted time and resources away from addressing serious atrocities committed in the past. Had the OTJ been able to focus exclusively on the human rights violations that provoked the establishment of a transitional justice process in the first place, namely, the systematic use of torture, extrajudicial executions, forced depopulation, and the denial of freedom of expression, it may have been able to complete its work during its 3-year term.