Comment: A case for more mature defamation laws in the Maldives

“Reputation, reputation, reputation! O! I have lost my reputation. I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!” said Cassio in Act II of Shakespeare’s Othello.

So did Maumoon Abdul Gayoom almost every day whenever before 2008 whenever his government wanted to stymie any criticism from anyone that he didn’t count as a supporter.

So did Maumoon Abdul Gayoom in June 2010, when the New York Times published the now (in)famous “looters” article and when Miadhu decided to reprint it.

So did Mohamed Nasheed in January 2012, when DQP’s Dr Mohamed Jameel alleged Nasheed was working under the influence of “Jews and Christian priests”.

These three moments/phases define the journey of defamation laws in our country and reflect three aspects of the maturity and adequacy of these laws. They reflect “the good, the bad and the ugly” of defamation laws in the Maldives and underlie the case for further refinements in these laws for us to have a stable, progressive and a coherent Islamic society.

Evolution of defamation laws in our country has come a long way from the times where it was a criminal offence punishable with up to six months of jail under Gayoom’s era. However, they seemed to have been too weak and toothless under Nasheed, and this in some sense led to his downfall that ushered in a volatile political environment for the last one and a half years.

The purpose of laws is to not just to punish actions that are undesirable for the peace of society but to also deter actions that can potentially harm such peace and harmony. This is especially true of defamation laws, which must create the fine balance between promoting responsible freedom of expression and providing enough deterrents against slander that can do unreasonable harm to reputation of individuals and to the cohesion of societies.

It is worthwhile to look back at how the defamation laws have evolved over time in the Maldives and reflect on whether we need to revisit these laws going forward, in order to make them more effective in serving the purpose that these laws are supposed to serve.

Before defamation was decriminalised in November 2009, defamation was one of the most abused laws in the Maldives. Section 125 was invoked by Gayoom administration every now and then to put their opponents under arrest and stymie any criticism of the government. Section 125 stated that “Where a person makes a fabricated statement or repeats a statement whose basis cannot be proven, he shall be punished with house detention for a period between one to six months or fined between Rf25 and Rf200”.

This of course reflected “the ugly” of our defamation laws and was dropped by the newly elected democratic government of Mohamed Nasheed. Such decriminalisation was hailed as a key democratic reform of the previous government and was appreciated by global rights watch bodies such as Article 19 and Freedom House as well as the United Nations itself. This was a significant movement for a society that was used to being under the shackles of the government and was enjoying its now-found ‘democratic society’ status.

Then, in June 2010, Gayoom decided to take Miadhu to court for reprinting an article published in New York Times. This article, which spoke of how money from the exchequer was inappropriately used for personal consumption under Gayoom’s regime, was based on the Nasheed government’s audit reports of Gayoom regime’s expenditure. This defamation suit was to be a watershed moment in democratic evolution of the country where a newspaper carried a story, which they believed to be credible, fearlessly. This was also a landmark moment with respect to freedom of expression and media in the Maldives; it was also the first case that Gayoom had lost in 32 years in the country! It showed Maldives to be on the right path of socio-judicial democratic reforms where some of the key tenets of globally accepted defamation regulations were shown to be working in our system.

However, this was soon followed by how ‘the bad’ of our defamation laws were exposed after ex-DQP leader and now-running-mate of Abdulla Yameen, Dr Mohammed Jameel Ahmed decided to slander against the then-President Mohamed Nasheed. In a closely knit Islamic society such as ours, an accusation of working against the nation’s religion, which is what binds us together, is a matter of supreme importance – more so, if such an accusation is made against the nation’s President.

If backed by proof, then it is a matter of strategic importance for the nation’s institutions to investigate but if it is unsubstantiated, it is slander of the most deplorable nature and must be handled with utmost urgency. In this case, it was interesting to note that while Dr Jameel made these allegations, they came from the political leader of a party whose other major leader, Dr Hassan Saeed, had declared during many election rallies in 2008 that as Gayoom’s Attorney General, he was aware that Nasheed was investigated for his association with western churches.

He had declared during these rallies that Nasheed had come totally clean after detailed investigations. Moreover, Nasheed’s government was accused of voting in favour of Israel at the United Nations, whereas Maldives’ voting in any UN resolution is public knowledge and clearly this accusation was untrue as well. However, despite these issues being common knowledge, a political leader could believe that he could make the most serious and slanderous allegations against the President of the nation and could expect to be let off the hook easily for such slander.

It’s another matter that there are a number of structural issues with respect to the judiciary in the Maldives which also played their part in how this case snowballed into significant political turmoil for the country. While I do not intend to comment on or discuss the issue of judicial reforms through this article, the core issue that I want to highlight is that even the laws must have had loopholes for which a political leader such as Dr Jameel had hoped to get away with slander. I say this because, had the laws been specific and if they had enough teeth to be deterrents by themselves, scope of judicial manipulation would have been limited in this case. For instance, while slander and libel were decriminalised in 2009, the maximum penalty for civil action against slander was set at MVR 5000 (US$325). That’s hardly a deterrent for a man who is known for his panache for Hugo Boss suits! He may as well have deposited MVR 5,000 in the President’s office in advance for every time he got a set of these ‘slanderous’ booklets printed!

This saga that set off arguably the biggest political turmoil in Maldivian history was not the end of it, as for the woes against weak defamation laws. Foreign investors like Nexbis and GMR complained of continuous undermining of their business reputation through unsubstantiated and irresponsible corruption allegations by local politicians such as Sheikh Imran and Hassan Saeed. For instance, in the case of GMR, while the likes of Sheikh Imran and various ministers in Dr Waheed’s cabinet made corruption allegations against the GMR deal, the Anti-Corruption Commission later gave a clean chit to the deal.

The impact that these experiences, with respect to the safety of investment climate and investor protection against local political interests, of these two foreign companies will have on future investment flows only remains to be seen in the times to come. What is very clear is that re-looking at defamation laws is not only important from a socio-political perspective but from an economic development and foreign investor protection perspective as well.

In essence, we have come a long way from pre-2009 days when criminal defamation was widely abused but are now at a place where anyone can make any sort of irresponsible allegations without worrying about the consequences. This is not only limited to the domain of politics but to our economy as well as everyday life. It is clear that defamation cannot go back to being a criminal offence but it is also important for us to consider if the current civil defamation laws reflect the desired balance that is important to maintain order in our society.

Clearly, the current laws are unable to make this balance and need to be strengthened – how, though, is a matter of broader socio-politico-legal debate.

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]

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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]

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First international fast food chain opens in Maldives

President Mohamed Nasheed attended the official opening of Marrybrown, a halal Malaysian fast food chain and the first international fast food chain to come to the Maldives.

The Marrybrown franchise currently operates in 15 countries worldwide. The restaurant in the Maldives was established by Lily International Private Limited, a leading business venture in the Maldives.

In his speech at the opening ceremony, the president thanked Lily International for its various contributions to Maldivian businesses since the 1980s.

The president also noted that the Maldivian lifestyle is changing to accommodate businesses enterprises such as Marrybrown, and that steps are being taken by the government to facilitate competition in the open market. The president said necessary legal amendments such as tax and state income laws were being made, and hoped more service enterprises would be established in the Maldives.

Marrybrown Chairman Lawrence Liew said the chain caters to a general population. “We have something different for everyone at a reasonable price in a clean environment. Our kids play centre creates a positive family space,” he said.

President Nasheed eats the inaugural fried chicken burger

After a moment of technical difficulties, Marrybrown opened its doors to the president, the press and the public. The President tasted the chain’s first fried chicken burger in the Maldives alongside franchise and government officials, and was given a tour of the facility which includes an air conditioned interior dining and play area and an upper open air veranda.

Families flocked to the restaurant doors for the next few hours, eager to acquire the free fried chicken meals that were being distributed in honor of the occasion.  A chipmunk mascot in a signature pair of green overalls welcomed children to the event outside, while groups were let in in stages to avoid crowding.

“The menu for Maldives was specially designed over the last six months by our chefs, and is a combination of Malaysian and Maldivian cuisines,” Co-Founder and Group Management Director Nancy Leiw told Minivan News.

When asked about the health value of the fast food menu, Leiw claimed Marrybrown “delivered all the necessary nutrients.”

“It’s a very balanced diet. Think about a burger. You have your carbohydrates, your protein, the lettuce gives you valuable vitamins and minerals, you have everything you need.”

Burgers are served with tomato and chili sauce packets and soft drinks.

Liew said that the franchise owner is “an ambitious businessman”, and that Marrybrown will be expanding business in the Maldives. “We don’t just serve food, we serve people. We will be providing opportunities in employment, business management, and local development,” she said.

The Marrybrown opening was facilitated by Malaysian staff, who will train Maldivian employees to “pass on our expertise and style of customer service,” said Liew.

The franchise’s nationality bore special connotations for the Maldives. “Malaysia is Muslim, and the Maldives is Muslim. We share a special synergy in Islam,” said Liew. “This synergy will allow us to work together in productive ways to create new opportunities for growth in line with our shared cultural standards.”

Liew noted that Marrybrown is celebrating 30 years of operation this year, and will be holding promotions and fundraising events for local charities and businesses throughout the year.

Marrybrown plans to open several more restaurants in the Maldives in the near future.

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