LGBT rights in the Maldives

The Penal Code of the Maldives further criminalises homosexuality in several ways. Criminal sexual contact is defined under section 131 of the Maldives Penal Code and refers to the prohibition of sexual contact without any reason permitted under Islamic Law. Same-sex intercourse is illegal under Islamic Law.[5] Same-sex sexual intercourse is explicitly named as an offense within section 411(2) of the Penal Code and is defined under section 411(f).[6][7]

The maximum penalties for homosexual acts prohibited under the Maldives Penal Code include; imprisonment of up to one year for unlawful marriage under s410(a)(8), imprisonment of up to eight years for criminal conduct under s411(a)(2) and 411(d) with allowance for a supplementary 100 lashes punishment under Islamic Sharia Law, and imprisonment for up to four years for unlawful sexual conduct under s412.[8]

According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) the Maldives Penal Code (prior to amendment in 2015) left matters concerning sexual conduct uncodified and to be regulated by Islamic Law, applicable to Muslims only. However, since the amended Penal Code came into effect the laws concerning LGBT rights have tightened.

Homosexual acts can no longer be punished with death under Maldivian law. Section 92 (k) of the new Maldivian Penal Code explicates that death penalty is available only for egregious purposeful killing.[3] Some point to section 1205 which states that "if an offender is found guilty of committing an offence for which punishments are predetermined in the Holy Quran, that person shall be punished according to Islamic law and as prescribed by this Act and the Holy Quran".[9] The Quran does specify a punishment for homosexuality. So, the punishment under Maldivian law are those specified in Sections 410 to 412.

In 2008, a European-drafted statement[12] called for the decriminalisation of homosexuality and recommended that states "take all the necessary measures, in particular legislative or administrative, to ensure that sexual orientation or gender identity may under no circumstances be the basis for criminal penalties, in particular executions, arrests or detention".[13] The Maldives was one of the initial 57 members (now 54 members) which signed an opposing document, read by the Syrian representative, that divided the United Nations General Assembly on the issue of LGBT Rights.[12]

As a country under Islamic Sharia Law, the Maldives followed the documents beliefs on several matters. The document stated that the European-drafted statement[12] interfered with matters that should be within the domestic jurisdiction of individual states. Furthermore, the document also stated a desire to avoid the social normalisation of what were considered to be 'disgraceful acts' by setting new rights and standards that were not agreed upon by entering into membership and following the Universal Declaration of Human Rights.[14] It also claimed that the declaration was a threat to the international framework of human rights.[15]

In June 2011, the Maldives rejected a resolution submitted by the Republic of South Africa at the United Nations which sought to affirm the rights of the LGBT community. A second resolution was adopted by the United Nations Human Rights Council in September 2014 which related to sexual orientation and gender identity, however, this was again rejected by the Maldives.[16]

In September 2014, in the Human Rights Commission of the Maldives (HRCM) submission to the Universal Periodic Review of the Maldives, a number of human rights issues were highlighted, however no LGBT rights issues were discussed.[17] 'Freedom of Expression' was highlighted as an area of concern where it was noted, "there are no laws which guarantee freedom of expression in the Maldives".[18] Reference was made to the numerous death threats and other violent behaviour received by human rights activists and the Commission did note the need to "take measures to address issues of threats and intimidation directed to parliamentarians, journalists and civil society activists to ensure their safety".[18]

This may or may not extend to the same persecution suffered by LGBT rights activists. The objectives of the Maldives Human Rights Commission are set out in the Human Rights Commission Act and explain why LGBT Rights were not included in the submission. The objectives of the Commission include protecting, promoting and sustaining human rights in the Maldives "in accordance with Islamic Sharia and the Constitution of the Maldives"[19]

In the United Nation's 2016 report of the Human Rights Council on its thirtieth session, it was noted that the Maldives accepted 198 recommendations made out of 258, leaving 60 recommendations rejected. These 60 recommendations included matters that were said to contradict the Islamic Faith and the Constitution of the Maldives; such as those "relating to freedom of religion, lesbian, gay, bisexual and transgender and non-traditional forms of the family".[20] Here, Action Canada for Population and Development responded by noting their concern over the Maldives rejection of "adopting a law against discrimination on the basis of sexual orientation".[21]

The Human Rights Council, in 2015, recommended that the Maldives accelerate their work towards enacting anti-discrimination legislation and to "ensure it includes a prohibition of discrimination on the basis of sexual orientation; and combat the stigmatization and marginalization of homosexuals in society"[4] It was reported that those perceived as homosexual or transgender in the Maldives were the target of hate crimes and other human rights violations and so the United Nations Population Fund (UNFPA) recommended the Maldives seek to ensure the protection of LGBT individuals from this through law reform.[4] The Committee also recommended that the Maldives "decriminalize sexual relations between consenting adults of the same sex".[22] These recommendations were noted by the Maldives but not accepted.

In the Human Rights Council's National Report for the Maldives in 2015, it was noted that since the review of the Maldives in 2010 there have been many important developments in terms of human rights as the country transitioned to a democratic society. The report does not, however, include any detailing of LGBT human rights issues or developments.[23]

In May 2015, in a briefing paper submitted to the Maldives second cycle Universal Periodic Review, the International Service for Human Rights (ISHR) said "[u]ncodified Muslim Sharia Law criminalises homosexual conduct, thus making the Maldives a very insecure place to advocate for the rights of persons who identify themselves as LGBT"[24]

In 2013, a blogger named Hilath Rasheed was nearly killed in a violent attack outside his home in the Maldives due to his open homosexuality[2] and push for religious freedom.[7] Freedom of religion, which heavily interweaves with freedom of expression and sexuality in the Maldives, remains heavily restricted in the country, both legally and through public opinion.[25] A 2014 article in New Zealand spoke of Abraham Naim who was granted asylum due to the persecution he faced being gay in the Maldives.The Ministry of Business, Innovation and Employment said to have granted refugee status because Naim was "at risk of serious harm from state agents" and would likely face further persecution for being openly gay on returning to the Maldives.[26]

This was affirmed by Ibrahim Muaz, a spokesman at the President's Office, who commented that those seeking asylum abroad for reasons of sexual orientation discrimination would face prosecution upon return.[27] While discrimination is apparent in the Maldives it remains a popular holiday destination for LGBT couples who rarely experience the reality of the country's Islamic based law due to the income from tourism.[28]

Rainbow Warriors[29] stated that the local Maldives LGBT movement is mostly limited to the virtual world, operating on the internet, due to the uncertainty and the intensity of homophobia in the country.[30] 2015 saw two local men arrested in their private home on one of the islands in the Maldives with charges of homosexuality following a complaint by a member of the public.[30]