Comment: What law is lacking that children are punished by the system?

Hawwa (not her real name), is a 15-year-old girl from the Maldivian island of Feydhoo in Shaviyani Atoll said to have confessed to fornication.

On 26 February 2013, the Maldives Juvenile Court ruled she was to be punished by a 100 lashes. It was a ruling that once again raised concern among children’s rights actors at the national and international level.

Some segments of the public reacted to the sentence with unease. Perhaps this is what made Attorney General Azima Shakoor, at long last, wake up to the gravity of the case. When she finally spoke it was to explain, in purple prose, the difference between black and white. She expounded at great depth on the narrow chances parents stand of preventing their children from becoming the prey of paedophiles. She attempted to explain in detail how nascent, how fragile, some of the laws still were in the new Maldivian criminal justice system.

But, consider this. Article 35 (a) of the Constitution demands that family, society and State provide children with ‘special assistance and special protection’. Then there is the Protection of Children’s Rights Act (Law No. 9/91), and the Special Policy Governing Conduct Towards Child Sex Abusers Act (Law No. 12/2009). My question is this: given the existence of these instruments of law, can the decision to pursue Hawwa in the courts – and the subsequent determination of the Maldives Police Service, the Prosecutor General’s Office and the Juvenile Court to have her punished – be explained as arising from a legislative black hole? Or was it a failure of the various institutions to give her the required special assistance and protection to Hawwa, regardless of existing legal mechanisms?

The long arm of the law

Islamic Shari’a forms the basis of the Maldivian Constitution and its laws. I do not want to elaborate here on what Shari’a has to say on the protection of children. It is true, Article 10(b) of the Constitution states that Maldivian laws and regulations must be compatible with Shari’a. Why must this, however, mean that our inevitable first reaction to a child offender is the thought of punishment? If it were left to me, my first port of call would be the laws we already have – Shari’a-compliant as required by the Constitution. And I would see that for a child to offend, society must first create the conditions for it.

Innumerable circumstances arise in which the purity and innocence can be taken away from the child. So, even if the child has committed an offence – given the rights of children assured in the Constitution and other laws – what harm is there in pausing to think: is punishment called for at all?

1. Article 35(a) of the Constitution

Even a cursory reading of this Article makes it unequivocally clear there is no shirking the responsibility of protecting children and keeping them safe. Is there any better way to express in one short sentence the religious responsibility that we all bear to maintain the purity with which a child is born for as long as she lives? Who should be punished first for the offence a child commits? The family, society, and/or the State that created the conditions in which the child had to offend? Or the child?

2. Protection of Children’s Rights Act (Law No. 9/91)

The purpose of the law is clear from its name itself. More importantly, it lays out and explains in more detail ways in which children can be afforded the assistance and protection assured by Article 35 (a) of the Constitution, and it reminds once again, through another legal mechanism, that these are responsibilities family, society and State must bear.

When we look at Section 9 of this law, it refers to a very common term ‘mukallafs’ [Official English translation takes the word to mean ‘juvenile delinquents’]. However, the law does not define what a “mukallaf” [juvenile delinquent] is, calling for much contemplation. What does it really mean to be a “mukallaf”? Because, if the child is a “mukallaf”, no matter how young he or she may be, it is not necessary that he or she be given the opportunity for reform. My attempts to pin down the intended meaning of “mukallaf” led me to understand it as a term referring to any post-puberty Muslim with the ability to tell right from wrong.

This creates new questions more than it answers existing ones. Do children offend in full knowledge of what is right and wrong? Did her parents and teachers overcome their cultural reluctance to talk about such ‘embarrassing’ matters and explain to her the seriousness of the crime of fornication with all that it entails? It is parents and teachers who teach children the difference between right and wrong, this much I know. I have noticed that there isn’t much embarrassment when parents watch dramas like Kasauti together with their children. Very often, children are given full Internet access with no parental control and supervision. Why then do we fail to consider those who were negligent in their responsibilities towards the child? Why do we rush to use whatever law possible to punish the child rather than to assist and protect them?

Without a doubt, by the time Hawwa knew to think about life she was already a victim of sexual abuse, and that too, from within her family. Her mother could not protect her. The islanders could not do much. And the State institutions failed to do a single thing to protect her from the abuse being recurred. When abuse against Hawwa was reported and the accused denied the allegations, there was nobody to check if the abuse recurred. But when she admitted in the court that she knew having sex without marriage is a crime, the Judge did not even bother to ask her when she came to find that out. Maybe she thought she had committed an offence after police began a criminal investigation against her. Or maybe she agreed to have sex with someone who left her with no choice but to agree. Maybe her defence lawyer failed to speak up for her in the court. Or maybe the defence lawyer is a clueless imbecile.

3. Special Policy Governing Conduct Towards Child Sex Abusers Act (Law No. 12/2009)

There are seven important purposes to the law, all of which are directly or indirectly related to stopping Maldivian children from becoming victims of sexual abuse and to provide adequate protection and compensation to those children who do become such victims. Thus, the law defines several sexual offences and lays out strict punishments for each offence. Part 3 of this law provides for the circumstances where a child of certain ages may not consent to having sexual activities.

The law also outlines how a child sex offender must be treated and limits certain constitutional rights accorded to them. Part 5 of the law allows Maldives Police Service and the Prosecutor General to arrest and extend the detention of those accused of sexual offences against children. It also makes it incumbent upon state institutions to establish a state register that help identify child sex offenders and monitor their movements as well as to make information regarding known child sex offenders easily available to the public. Moreover, the law also makes it explicit the level of proof needed to establish sexual offences against children in a court of law and outlines what judges need to consider in deciding such a case.

Despite the existence of such a detailed law, I believe the only thing that Maldives Police Service – the lead investigator – saw [in Hawwa’s case] was the offence of fornication. This shouldn’t be surprising; after all, it is the child that they first questioned, not the suspect. If we look at Maldivian history, we see decades spent living in fear and intimidation from the government. Until recently, the words ‘police’ or ‘military’ were enough to drive an adult to soil himself. I can’t even begin to imagine what it must be like for a child victim of sex abuse.

What I am certain of is that if a suspect is questioned, and he or she immediately denies culpability, the questioning must stop. Perhaps some think that the ‘right to silence’ is assured in the Constitution as a joke; but that child, shaking with fear, must have been recalling and recounting to the police all of those horrific events, one by one.

The poor child has no chance to exercise her “right to remain silence” because I am certain that the child is questioned to find out who committed such heinous crimes against her. Think about it – how much pain are we inflicting on this child during this process? And, from all the talking that she did, maybe the only thing the police heard was the child saying, ‘I had sexual relations with someone’. But whatever it is, what we know for certain is that they sent her file to the Prosecutor General, to have her charged with the crime of fornication.

Perhaps, police couldn’t find a clause in that Law No. 12/2009 to use finding the person (or persons) who made her a victim of sexual abuse (which is the actual purpose of the law). Was what she told the police not of any assistance in identifying her abuser? Was even Part 5 of Law No. 12/2009 useless to the police?

4. Penal Code

If the offending child is under 16, and the offence falls under Hadd crimes, Section 7 of the Penal Code makes it impossible for the judge to exercise discretion and lessen the required sentence. This is a law that takes absolutely no account of the child’s right to special protection and safety. And we always see that child offenders are mostly prosecuted under this 40 year old Penal Code!

What is most striking is the failure to realise that the Section 7 of the Penal Code contradicts most of the Law No. 9/91 and some sections of the Law No. 12/2009. The prominent lawyers, the members of parliament elected by people as our legislators, and the various government institutions – they all failed to acknowledge and act on this fact. Instead, ignoring the true spirit in which child protection laws have been formulated, the institutions rush to punish children.

Institutional Negligence

Section 9 of Law No. 9/91 makes it incumbent upon the State to have a separate juvenile justice system to investigate, judge and punish child offenders. How good has the State been at fulfilling this responsibility? If I speak on this subject, many mouths will open in defence of the institutions. My every sentence will be backed up with some jargon. It happens often enough, and, indeed, that is what I want – to provoke them into saying what they want so that we can judge what weight those words really carry.

What I know is that a majority of serious offences involving children so far have been committed and continued to be committed over a long period of time. Yes, if a case is reported, investigators arrive at the scene and gather information. But is that enough? I disagree, and so would a large number of people. Let’s look at why.

1. Institutions responsible for protecting children’s rights

There is always a dedicated government institute for protecting the rights of the child. Its name changes often, but, I would like to believe, its purpose remains constant – fulfilling the government’s obligation to protect and assist children as stipulated in the Law No. 9/91.

What we continue to witness, though, is its incompetence. What it talks foremost is of the lack of funds. Of course, I accept that in the last year or two, budget shortfalls may have required suspending some projects. But how long has it been since these people were appointed, given air-conditioned offices and the wages so children’s rights can be protected? Why bring up the issue of funds whenever there is an individual case to be looked into? Listening to these excuses and forgetting about the future of their children at the expense of sympathising with them – this is not what Maldivians need.

It is normal for child abuse and negligence cases to drag on, dragging the child along with it. We know from the child protection institutions themselves that this is a regular occurrence in a number of the hundreds of small Maldivian islands. But, apart from celebrating the annual international Children’s Day or some other occasion, or holding some sort of a workshop, we rarely see these institutions in action.

Now that every island has more councillors than they know what to do with, and every administrative atoll has been given a council office and wages, why in the world aren’t child protection institutions working more closely with them to increase people’s awareness on child protection issues? Surely it doesn’t cost too much to run an information campaign that familiarises people with the legal mechanisms available against child sex offenders? Nor would it put intolerable pressure on available resources towards understanding the factors that contribute to the continuing reluctance among people to report such matters.

2. Investigative sector

The Family and Children Service Centre (as it is called now and under the Ministry of Gender, Family and Human Rights) and the Maldives Police Service are the main agencies involved in the investigative stages of child related offences. Depending on the type of case, the Human Rights Commission of the Maldives (HRCM) may also become involved. The Maldives Police Service has a dedicated unit with specialist investigators to deal with crimes involving children. But clearly, these institutions lack the capacity for identifying those who neglect or abuse children in various ways.

Even if the police have been given enough information by island councillor or others in the community, all it takes is for the suspect to deny involvement for the police to release them, unsure of what to do next. The next thing you hear is that police have sent a fornication file against the child to the Prosecutor General. When it comes to some cases, police proudly declare assistance being sought from the FBI or any other fancy international investigative or intelligence agency in locating a suspect. Why is such assistance not deemed necessary when trying to find someone accused of robbing a child of her purity and innocence and is prowling society to seek out other child prey? Is the protection of the rights of children and ensuring their safety not important for the Maldives Police Service, just the same?

3. Responsibilities of the Prosecutor General and the Attorney General

The Maldives Government enacted the Prosecutor General’s Act (Law No. 9/2008) on 2 September 2008 to streamline and strengthen the criminal justice system as required by the new Constitution. Furthermore, Article 133 (g) of the Constitution gives Attorney General the authority to determine the State’s main criminal prosecutions policy and to inform the Prosecutor General of it. Article 220(c) of the Constitution, meanwhile, states that the Prosecutor General should follow the Attorney General’s stated policies in executing his responsibilities. The required ‘Main Prosecution Policies in Criminal Offences’ was issued by the Attorney General on 9 September 2008.

This Prosecution Policy is comprised of twelve main policies and, from the outset, warns against drawing juvenile offenders into the criminal justice system. I would particularly like to draw your attention to the following two clauses in the Prosecution Policy:

Policy 10
Cases of sexual misconduct and fornication involving children are to be handled in a manner to avoid criminal convictions to the victims of such offences, and prosecution of such cases must be conducted, after due diligence is exercised to ensure that they are not subject to the criminal justice system.

Policy 11
Prosecution of offences of sexual misconduct and fornication involving children, causing physical harm on children, raping of children, forced sexual misconduct on children are to be after due diligence is exercised to ensure adequate protection can be provided to the victim of those offences.

I don’t want to elaborate on the two clauses above; their meaning is explicit. Just as clear is the requirement that the prosecutor general follow the Attorney General’s prosecution policy. But, with not a thought spared to the above policies, even in cases where children have been sexually abused, what the Prosecutor General hastens to do is seek the court’s permission to inflict 100 lashes on the child. She had no protection from the sexual emotional abuse she continued to suffer from the age of 11.

And, while the Prosecutor General continues to blatantly flout the Attorney General’s policies, the Attorney General continues to repeat the claim that there is neither law nor criminal procedures to deal with the matter properly. She bemoans the weaknesses of evidence law or some other law and wholly ignores the violation of the laws and policies that do exist.

The courts

Maldivian courts are no stranger to fornication cases involving children. Statistics show that even in 2011 alone 10 such cases against children under 18 years of age were filed in the courts. These are cases that can also be lodged under Section 7 of Law No. 12/2009.

But, I find it most concerning that children are being found guilty of fornication in cases filed for the purpose of prosecuting someone for forcing the child into a sexual act. These cases are being filed in the courts using an antiquated Penal Code.

In the application of criminal procedures such as level of proof required, there is no differentiation between a fornication case against a child victim of sexual abuse and a murderer. What sort of a criminal justice system is this? Passing a sentence based only on what she may have said in court, without taking into consideration the special assistance and protection the child is legally entitled to, is, in my opinion, invalidating not just the relevant laws but also the Constitution.

In conclusion

If we look at the progress of Hawwa’s case alone through the criminal justice system, it is obvious that things have sunk so low due to the negligence and failure of all those – institutions and individuals – responsible for the protection and safety of children at all levels.

Without a doubt, this case will spark all varieties of debate about how much or little safety and protection Maldivian children are being accorded in their own home country. What I do not accept is the argument that children are not being protected as much as they deserve because we lack the laws to do so. What I believe is that we, the parents, the society and the state institutions, have failed to protect children despite having the necessary legal mechanisms in our possession.

We must hasten to take the necessary steps to stop such negligence, and to protect our children, our future. Instead of a culture of punishing children, we must establish and maintain one that holds to account those who are negligent in providing children with the education, the upbringing and the protection they rightfully deserve.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]


13 thoughts on “Comment: What law is lacking that children are punished by the system?”

  1. Education! Western Education!

    Not the Madarusa style swaying of head and Arabic chants.

    But science, engineering... real education which is useful to the kids, and build a generation. Then, it will slowly turn better.

  2. @ Andre Andreas,

    Western Education, ahhahhhahhha!

    You are deluded, mate!
    You look at the statistics of western society to see how much they protect their children!

    How much suicides they have! how much bullying they have! how much abuse and neglect they show children?

    They have to register and carry guns to keep themselves protected!

    i do not see anything better in the west than the Maldives! the same crimes happen everywhere??!!

  3. U.S. Worst in Child Abuse

    and calls themselves as gods of freedom, liberty ho hum! blah blah....

    Take a look at New Zealand's position in the developed world!

    if the developed world is like this, then what will be the situation in the Maldives where money is the only concern!! i feel really helpless for our children!!

    BTW i am sorry for writing all this because some of the westerners are offended when i write the truth!

  4. Overall very well put I must admit. There are definitely things you have highlighted here which must be taken very seriously (because you insist). We will look into this, especially with regards to this "imbecilic lawyer" and some other stuff you have mentioned (not to lay offense to him/her though).

    Perhaps there is room for correction here after all. I commend your effort, and intuition sir. It does show the manner in which one puts forth his argument, and his or her possible intentions even (and especially), irrespective of his or her credibility or qualifications- does go a long way in letting people know, or seeing the error of their own ways. This is what should be our aim after all. It becomes bearable for everyday people to make sense of what we may be saying, this is what I mean... These are not small issues you talk of here and there.

    What we may be implying or insinuating has also become very important. This is where suspicion is seeded. And people are generally very suspicious in these parts. This must always be taken into account. It is nothing personal, and it may be a racial thing in fact (other notions or peoples will not be unfamiliar with this either). It is also an egregious mistake to underestimate people in general, your readers in this case. We must give them more credit, their criticism's also some heart. And I am not here to commend the grammar or the English in your essay, that is not why I comment here.

    Sometimes what you are saying is not important to people, what validations you cite for your arguments may also be irrelevant, it is what you may be implying, insinuating that may catch people's eye's often. It takes more than just good intentions to impress upon people that your words can be trusted (and therefore carry some weight), or that you mean well.. Remember it is humans dealing with humans (not humans interacting with lesser beings or forces).

    Confrontation, disrespect and hot-hotheadedness will also only elicit an equal and opposite reaction from the other side (this is how this conflict has been created). We must approach these issues as civilized human beings really (even if we may be dealing with perceived uncivilized humans) and meet our foe's on an equal footing. And why not? Don't belittle them just because you disagree with them! It may be you don't understand what they are saying- doesn't necessarily mean they are wrong you know. This might be a point to note here. A point to impress upon ourselves if you will..

    Give others also due credit for their own unique intelligence, and they might just surprise you by agreeing with you in fact- where they had disagreed with you before :). On some level this is always possible, there is no reason this cannot happen (I hope). Basically nobody can be forced, or cornered into 'understanding', 'converting', or 'complying' these days you see.

    People will immediately label it as some form of 'imperialism' if that happens. Hey, people will always be people, and irrationality is often, and perhaps, sometimes a necessarily human quality too as well. And they might not be wrong in saying that, not entirely at least- these are after all not without historical precedents! We must be convinced first, and respect goes a long way in such situations. It doesn't help when one culture imposes disagreements on another culture either. That's a different topic though. Everything however does always fall into a greater context you know. However it is not wrong to say cultures must adapt in some ways either, not entirely.

    The Judiciary and even an 'Ulema' must be approached in this manner stated above. They will then respond in kind, else they will make fire for fire, missile for missile. Brute force today is a universal human quality, it's not just the masses or mob which can profess it. Once it was an ordained right for lords, barons, kings and Queens, but no more. A people revolution may have come yes, but the establishment and coalition also comprises people, don't you agree? Besides the power of money, faith and an assortment of sacred texts can defeat a mob any day (this may be perhaps what is being played out).. That's just easy peasy.

    Do we want to win, or do want our children to be safe, our children to win? This is a for instance kind of question by the way. The two might not necessarily be the same, why I say this..

    It is a complex quagmire. We may all have truer or more valid points and arguments, not just one side has it (not necessarily) you know. If our side is to be heard so vividly, so violently- the other side will also make sure they have their way (one way or the other), they [will] also be heard. A tug-of-war if you will, with our children spinning the cables..

    I like your subtle, but distinct approach Ibrahim Shakeeb. Let us see whether the other side takes note of you (hehe). I am quite certain they will, in your case

    .. may the 'Universe' or 'God', be with you...

  5. It is very clear the Muslim society in Maldives follows barbaric morns and ways. They have no respect for children and women. This is what so called Islam is about. Sham!

  6. @Alex Hitlor

    That is one mighty long comment. Missile for missile it should be.. But you know it doesn't really matter. Not anymore at least, this will arrive at a finality with or without us, it's the politicians versus politicians now. It has become political opportunism at its best, this issue is no different. psh..

  7. Ibrahim Shakeed is one of Yameen's gunda's (one of his top paid advisors). We will not fall these elaborate traps. If you have written anything sensible we accept, but thats a different story.

  8. What Shimy doesnt know (or is desperate to whitewash) is that there is no western country that punishes rape victims.

    Shimy should go back to Pakistan and blow himself up.

  9. @Shimy on Tue, 2nd Apr 2013 5:33 PM

    The statistics are available from the western nations. True.
    I cannot say the same for Pakis, Iraqis, middle eastern nations, Mordisians....

    Yes, we need western education. We need transparency. That does not mean that psychopaths, sociopaths, homosexuals, Neanderthals, imbeciles would not exist. It's a fact of life. God created them I similar percentages across the world.

  10. Age of consent in Japan is 13.
    Age of consent in Italy is 14.
    Age of consent in Maldives is 18.
    Age of consent in Tunisia is 20.

    So my question is what the h__l is the real age when a minor becomes a mature person?

    2nd question is if a US marine rapes a japenese girl one day after her 13th birthday (in Okinawa for instance), wold the japanese take it just as consensual sex...?

    Please use your refined western educated brains to answer these two questions for the humble human being.

  11. @ Abdulla Hussain,

    Now what am i white washing??!!These are facts from the world, you dumb heads!

    My question is, Why can't these western nations keep their crime rates low but top the lists! Why can't they find safety for their own children through their so called powerful human made sensible laws???!!!

    If their community is so peaceful, then how come they purchase guns to defend themselves from the hardcore criminals?
    What laws of Britain and America or Canada has given them safety from criminals like this!!??

    Accused Canadian cannibal Luka Magnotta extradited to Canada

    UK pair guilty of manslaughter of six children

    I am not against the good western education which says to think and question!!

    but the western education which goes on to say that there is no god and we can do whatever we want in the way of freedom! There's a limit to everything!

    True, muslim nations are in a lot of trouble but that is only because there isn't anything Islamic in them, like the Maldives!

    i do not see anything Islamic in Pakistan or Afghanistan when the whole country is corrupt with corrupt leaders!How can one say the countries are Islamic when they have different sects! it's crazy!!?? the politics play a bigger role here and not the religion??!!

    True, we should improve our laws which needs further elaboration and find out ways to protect our children but that will never happen if we follow the paths of some doggone mad humans from America, Britain or the lot!

  12. BTW i am hopeful of America and Britain because good muslims will rule the country very soon as their population is expanding?! and i bet many westerners dread this!

  13. @Andre. Andreas
    " That does not mean that psychopaths, sociopaths, homosexuals, Neanderthals, imbeciles would not exist. It’s a fact of life..."

    So we are back to square one!Aren't we? What law is useful if you can't reduce the crime rates and abuse rate?!

    That makes your western education same as the education learnt by us neanderthal Maldivians??!!tsk tsk!!


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