ICCPR Case Digest

CCPR/C/130/D/3248/2018

Communication

3248/2018

Submission: 2016.09.25

View Adopted: 2020.11.02

Tholal and Mahmood v. Maldives

Judicial restrictions imposed on the report of the national Human Rights Commission of Maldives, Committee finds a violation of the freedom of expression

Substantive Issues
  • Freedom of expression
Relevant Articles
  • Article 19
Full Text

Facts

The authors of the communication are two nationals of the Maldives who claimed that the State Party had violated their rights under article 19 of the Covenant. At the time when the alleged violations took place, the authors were members of the national Human Rights Commission, an independent and statutory body in Maldives. In September 2014, the Commission submitted a report to be considered during the second universal periodic review of Maldives by the Human Rights Council. In the report the Commission questioned the independence, transparency, impartiality, competence, consistency and accessibility of the judiciary of Maldives, as well as criticized the Government of Maldives. Following the publication of the report, the Supreme Court initiated proceedings against the Commission, alleging that acts against national security and interests were committed and that unlawful representation and dissemination of information in the name of the State took place. The Supreme Court found that the Commission had acted unlawfully by deliberately attempting to undermine the independence of the judiciary and the Constitution of Maldives, and ordered the Commission to follow guidelines which limit the Commission’s ability to freely share information with the United Nations. 

On this basis, the authors submitted that the charges and guidelines imposed by the Supreme Court of the State Party have constituted a restriction of their protected communication with the United Nations and violated their right to freedom of expression.

Merits

The Committee considered whether the Supreme Court’s findings against the Human Rights Commission fell within one of the acceptable restrictions of freedom of expression. The Committee noted that any such restriction must be applied only for the prescribed purposes and must be directly related to the specific need. In this case, the Committee found that the State Party did not explain how the measures taken by the Supreme Court were provided by law, nor how they were necessary, proportionate or in the pursuit of a legitimate aim under article 19(3) of the Covenant. 

In evaluating the proportionality of the restriction, the Committee recalled that it is an essential element of a free and democratic society to allow their citizens to criticize or publicly evaluate the branches of their government without fear of interference, within the limits set in article 19(3) of the Covenant. The Committee also considered that the context and forum in which the report was submitted was meant to improve the human rights situation and that the Supreme Court’s guidelines have affected the ability of the Commission from raising concerns regarding any public or private institution in the Maldives. The Committee therefore found the guidelines as disproportionate limitations of the authors’ freedom of expression, as they did not represent the least-intrusive instrument to achieve the function of protecting peace and security. Further, such restrictions were not in pursuit of a legitimate aim as defined by article 19(3) of the Covenant. The Committee therefore concluded that the facts before it disclosed a violation of authors' rights under article 19 of the Covenant.  

Recommendations

In the present case, the Committee found its views to constitute sufficient remedy, however the State party remains under the obligation to take all necessary steps to prevent the occurrence of similar violations in the future. 

Separate Opinions

Committee members Heyns, Santos Pais and Zimmermann dissented from the majority, arguing that the facts did not show that the authors have been personally affected and could not be considered as “victims”. Further, even if the case were to be admissible, the facts would not lead to a violation of the Covenant as the alleged victims “did not show that their right of freedom of expression had been infringed”. 

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