Tag: rape

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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Amputation for theft added to draft penal code

The draft penal code bill has been amended to include punishments as prescribed in the Quran, such as amputation for theft.

The new article added during a parliamentary committee meeting Thursday (March 28) states that if someone convicted of a crime requires legal punishment, as specified in the penal code, that person will face punishment as stated in the Quran.

MP Imthiyaz Fahmy clarified the amendment to the draft penal code is about hadd punishments only and “not at all” about all Sharia offences, speaking with Minivan News today.

“Hadd offenses are already crimes in the draft penal code. However the prescribed punishments in Sharia for those particular crimes are not codified in the draft penal code, but instead they are left up to the interpretation of Sharia,” stated Fahmy.

“But to completely evade making a reference to hadd punishments or to mention that no hadd punishment at all should be imposed is impossible to the the fact that Sharia shall be one of the basis of all the laws of the Maldives,” he added.

Criminal punishments are detailed for murder, fornication, thievery and drinking alcohol.

The committee’s chairperson, MP Ahmed Hamza, told Sun Online the new draft penal code will require amputating persons convicted of theft, while a person convicted of apostasy (renouncing Islam) will also face punishment.

The bill does not include apostasy as a crime, therefore someone found guilty of this offense cannot be subjected to Quranic punishment, committee member MP Ahmed Mohamed clarified.

Gambling is also not criminalised, according to committee member MP Abdul Azeez Jamaal Aboobakuru. He told local media that the bill does not “state a manner in which such crimes can be convicted”.

Fahmy explained that Sharia law does not prescribe a hadd punishment for gambling.

The penal code draft bill does include factors that must be considered before convicting a person of murder; for example, any contradictory evidence would prevent such a conviction.

Imposing the death penalty cannot be subject only to the confession of the accused.

“Sharia does not run headlong into death penalties, amputation or stoning to death. Therefore depending on the circumstances, Sharia may avoid capital punishments,” said Fahmy.

He further clarified that Sharia punishments may be interpreted according to any of the schools of Sunni Muslims.

While interpretation of Sharia law punishments are within the purview of Maldivian judges, Fahmy believes that the current judicial system is incapable of providing Maldivian people justice, even with the new penal code.

“I do not believe the judiciary and the criminal justice system in the Maldives is capable of doing justice or able to take care of the new penal code. The judiciary is unable to ‘keep up with the Jonses’,” Fahmy stated.

The parliamentary committee’s additions to the bill follow its rejection of all but one amendment suggested by the Fiqh Academy of the Maldives.

Speaking to local media on Monday (March 25), Hamza said the committee had decided to accept only a suggestion concerning the offence of theft. Other amendments, he said, were merely changes to the wordings of the bill and carried little legal weight.

“They have submitted amendments to abolish certain sections. These include certain legal defences. When we looked into removing those defences, we found this impacted fundamental principles embedded to the draft penal code. So we decided to reject their suggestions,” he stated.

Following the decision, Vice President of the Fiqh Academy Sheikh Iyas Abdul Latheef told local newspaper Haveeru that the academy had informed parliament that current draft penal code should not be enforced in the country.

“The current draft does not include the Hadds established under Islamic Sharia. There is no mention of the death penalty for murder, the punishment of stoning for fornication, the punishment of amputation for theft and the punishment for apostasy. We proposed amendments to include these punishments,” Latheef stated.

Comments submitted by the United Nation agencies in the Maldives, Human Rights Commission of the Maldives (HRCM), and Attorney General are being considered and incorporated into the draft text.

The initial draft of the penal code was prepared by legal expert Professor Paul H Robinson and the University of Pennsylvania Law School of the United States, upon the request of the Attorney General in January, 2006. The project was supported by the United Nations Development Program (UNDP).

Professor Robinson’s team have published two volumes (Volume 1 and Volume 2) consisting of commentaries on sections of the draft bill.

The bill was first sent to the Majlis (parliament) in 2006 and will replace the 1961 penal code.

The penal code bill is being forwarded to the parliament floor this upcoming week, according to local media.

False preaching regarding rape and fornication

The parliamentary committee slammed the “false preaching” of the Chair of Adhaalath Party’s Scholars Council Sheikh Ilyas Hussain over the bill earlier this week.

Sheikh Ilyas declared that the new penal code does not recognise fornication with mutual consent as an offence.

MP Nazim Rashaad contended that whether sheikh or not, nobody could misinterpret the clause and claim that the bill did not recognise “mutually consented sexual intercourse” as an offence, and accused the Sheikh of lying to discredit the bill and parliament.

Briefing committee members on the sections concerning sexual offenses, Rashaad stated that under the draft penal code, both fornication and rape are offences under section 411 of the draft bill.

The existing penal code does not explicitly recognise “rape” as a crime, and cases are handled under provisions for sexual offences.

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One million people sign petition calling for end to flogging of women and children in the Maldives

An online petition calling on the Maldivian government to end the practice of flogging women and children for the crime of fornication has been signed by more than one million people worldwide.

The Avaaz.org petition, titled ‘Horror in Paradise’, follows the sentencing of a 15 year-old rape victim to 100 lashes and eight months house arrest, for confessing to a separate instance of fornication during the investigation into the alleged murder of her baby. The child was found buried in an outside shower area.

“Let’s put an end to this lunacy by hitting the Maldives government where it hurts: the tourism industry,” declares the Avaaz petition.

“Tourism is the big earner for the Maldives elite, including government ministers. Let’s build a million-strong petition to President Waheed this week, then threaten the islands’ reputation through hard-hitting ads in travel magazines and online until he steps in to save her and abolish this outrageous law,” it states.

Worldwide support for the petition has extended to the travel media, with industry news website eTN declaring that that it would not accept advertising or press releases from any Maldives government agency until the issue was resolved.

“I am outraged on hearing that a 15 year-old girl, who has survived rape by her stepfather and a resultant pregnancy, has now been found guilty of “fornication” and sentenced to flogging and house arrest. I am an active member of the UNWTO World Tourism Network on Child Protection and as a world citizen I cannot be silence about this. No civilized country should get away with such a nightmare system of justice,” said eTN publisher Juergen Thomas Steinmetz.

Tourism Minister Ahmed Adheeb had made no response at time of press following the petition reaching one million signatures. Deputy Minister and Head of the Maldives Marketing and Public Relations Corporation (MMPRC), Mohamed Maleeh Jamaal was also not responding.

However, following an interview with Maleeh, local news outlet Sun Online reported the minister as saying that the Avaaz campaign was an attempt by the opposition Maldivian Democratic Party (MDP) and “different media groups that work alongside the MDP” to “crush the country’s tourism” and “cause havoc on the country’s economy.”

“When they started the campaign, they were clearly aware of the president’s stand, as well the attorney general’s stand on the matter,” Maleeh said, according to Sun.

“Looking back, a 14 year-old was given the same sentence during former President Nasheed’s presidency and nobody seemed to have talked about that. This whole deed is an attempt to defame the country’s tourism industry and [damage the] economy,” he said.

According to Sun, resort tycoon, Judicial Services Commission (JSC) member and presidential candidate of the Jumhoree Party (JP), Gasim Ibrahim, at a rally on Fuvahmulah over the weekend also declared that a slight decline in tourism could have serious consequences on the lives of Maldivians.

As such, Sun reported Gasim as saying, “more focus should therefore be put on developing the fisheries industry.”

In the wake of global media coverage of the initial sentencing, the President’s Office issued a statement late last month expressing “sadness” over the sentence, and promising a review.

“The government is of the view that the case merits appeal. The girl is under State care and the government will facilitate and supervise her appeal of the case, via the girl’s lawyer, to ensure that justice is done and her rights are protected,” the statement read.

President’s Office Spokesperson Masood Imad has meanwhile expressed hope that punishments such as flogging would be debated and one day repealed.

Sources on the island Feydhoo have meanwhile told Minivan News that concerns had been raised by islanders since 2009 that the girl had potentially been the victim of sexual abuse not just by her stepfather, but a number of other unidentified men on the island.

Atoll Council President Moosa Fathy said police had conducted numerous investigations into the girl’s situation since 2009, but that she had ultimately been left in the custody of her mother and stepfather even after she was found to pregnant. He blamed the “limited facilities” available to house and protect the girl, as well as a lack of budget, management and staff to shelter vulnerable young people.

Second flogging sentence of underage girl

The most recent flogging sentence passed against the 15 year-old abuse victim follows a similar case in September 2012, in which a 16 year-old girl was sentenced to house arrest and 100 lashes for fornication with a 29 year-old man.

The man was convicted of sexual assault under common law and sentenced to 10 years in prison.  The girl was sentenced under Islamic Sharia on the charges of consensual sex outside of wedlock.

An official of the Ministry of Gender, Family and Human Rights at the time said the matter was the concern of “either the court or JJU (Juvenile Justice Unit). We will be concerned once the girl is flogged, but as far as I know, she hasn’t been flogged yet. We do not want to associate ourselves with a case that we are not involved in.”

Calls for moratorium

Amnesty International in 2009 called for a moratorium on flogging sentences in the Maldives, arguing that the sentences were disproportionately applied to women.

Amnesty’s calls were echoed in November 2011 in an address to parliament by UN Human Rights Commissioner Navi Pillay, who said the practice “constitutes one of the most inhumane and degrading forms of violence against women, and should have no place in the legal framework of a democratic country.”

Her comments were condemned by religious groups in the Maldives, with protesters urging authorities to arrest the UN High Commissioner and gathering outside the United Nations carrying signboards with slogans such as “Islam is not a toy,” “Ban UN” and “Flog Pillay”.

A presidential state apology for allowing Pillay to speak to parliament was one of the five demands of the December 23 coalition [of 2011], a mass gathering in the capital Male’ that saw the fractured opposition unite against President Nasheed on the pretext of protecting Islam.

Religious NGO Jamiyyathul Salaf meanwhile sent a letter to the UN Resident Coordinator, alleging that the Pillay’s call for a moratorium on flogging was “inhumane and disrespectful.”

The Foreign Ministry – at the time under the Nasheed administration – dismissed the calls for discussion on the issue, stating: “There is nothing to debate about in a matter clearly stated in the religion of Islam. No one can argue with God.”

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Maldives failed “at every level” to protect minor charged with fornication from years of abuse

Additional reporting by JJ Robinson.

Council heads and senior civil society figures have slammed the judiciary, state authorities and welfare groups over their systemic failure to protect a 15 year-old girl convicted of fornication and sentenced to flogging, despite her history of alleged sexual abuse dating back to 2009.

While the case has only recently received global media coverage, local councilors and woman rights groups told Minivan News that authorities failed for years to address “public uproar” over the child’s alleged abuse.

The girl from the island of Feydhoo in Shaviyani Atoll is currently in the care of the Ministry of Gender and Family. She was identified as a victim of child abuse last year after the body of a dead baby was discovered buried in the outdoor shower area of her family home.

Her stepfather was later charged child sexual abuse, possession of pornographic materials and committing premeditated murder, while her mother also faces charges for concealing the alleged sexual offences.

However, during the course of investigations into the case, officials told Minivan News that the state had no choice but to press fornication charges against the minor after she confessed to having what she claimed was consensual sex with an unidentified man.  She now faces 100 lashes in public when she turns 18 – a sentence the President’s Office this week said it would try to avert amid growing international censure and debate over corporal punishment and reform of the country’s Sharia-based judicial system.

The case has led to intense global media scrutiny and an online campaign by petition website Avaaz.org, which gathered almost a million signatures in two days – more than the number of tourists who visited the country last year.

With Maldivian authorities and child protection bodies now in the global spotlight, Aneesa Ahmed, Chairperson for the Hope for Women NGO, said councilors from Shaviyani Atoll had been expressing concerns to authorities about the girl’s safety for several years.

Aneesa said the inaction of a wide variety of institutions in response to these concerns reflected the state’s failure “at every level” to try and protect from abuse.

“All institutions, including the counsellor – if she had one while being interrogated by police – failed, because I am told her case was reported as early as 2009,” she added.

Speaking on Thursday (March 21),  Atoll Council President Moosa Fathy said police had conducted numerous investigations into the girl’s situation since 2009 in response to concerns raised by councillors on Feydhoo.

However, Fathy said the girl had ultimately been left in the custody of her mother and stepfather even after she was found to pregnant. He blamed the “limited facilities” available to house and protect the girl, as well as a lack of budget, management and staff to shelter vulnerable young people.

“The police thoroughly investigated the matter, but the response of many organisations simply was not good enough,” Fathy said. “Even now the problem has not been solved.”

Fathy said that rather than blaming a single state or civil society organisation for the girl’s ongoing abuse, every institution charged with the girl’s care had to take responsibility for the matter.

“This girl needed special care. There are special shelters where she would have been safe, but I understand there is not enough budget or staff and general administrative mechanisms to run such programs,” he said.

Fathy said he had been raising concerns about the girl’s welfare for the last two years, and said he had also tried unsuccessfully to meet with former Gender Minister Dhiyana Saeed while she was still in her post to discuss the case.

Island uproar

Sources on Feydhooo have meanwhile told Minivan News that concerns had been raised by islanders since 2009 that the girl had potentially been the victim of sexual abuse not just by her stepfather, but a number of other unidentified men on the island.

However, the island council claimed the victim’s unwillingness to tell authorities about her alleged abuse meant she remained living with her mother and stepfather.

Island Councillor Ibrahim Naushaad told Minivan News that upon discovering the child was pregnant last year,  police and the Gender Ministry failed to remove the girl to a shelter.

“The police and gender ministry didn’t take responsibility or provide counselling to the girl,” he said. “The police and ministry investigated, but we don’t know what she said to them.”

Naushaad said the minor presently remained under the care of the Gender Ministry as she was unable to be returned to Feydhooo, as her biological father was being severely disabled and unable to support or look after his daughter.

“Same thing could happen again”

Naushaad alleged that several men on the island who were also believed to have had sex with the minor remained unidentified, leaving her at risk of further abuse should she return to the island.

“The Human Rights and Gender Ministry asked if they could send her back to the island, but I have explained that her father would be unable to look after her and keep an eye on her,” he said. “If they send her back here, the same thing could happen again.”

According to Naushaad, the minor was questioned by police on at least four separate occasions, but he said she had been unwilling to state whether she had faced sexual abuse from her family or other men on the island.

Sources on the island said that the perception was that the minor, along with her mother and stepfather, were believed to have been “lying” to police investigators.

Naushaad told Minivan News there remained concern among islanders that the girl had now been charged by the country’s court with fornication, after being found guilty of having sex with an unidentified partner.

“They did not identify who this man was and that is why we have concerns about what they are doing. This is not good,” he said.

Naushaad claimed the council done everything it could to try and take responsibility for the matter by continually raising concerns with authorities since back in 2009.

Legal review

After the minor was first charged with fornication in January, the government pledged to review the  use of flogging as a punishment and legal practices it claimed, in certain cases, criminalise victims of sexual abuse.

While there is no timetable for reforms to be put in place, President’s Office Spokesperson Masood Imad expressed hope on that punishments such as flogging would be debated and one day repealed.

“I’m sure when we debate [punishing suspects for fornication with lashes], we will find an acceptable solution for all parties,” he said.

The Maldives constitution does not allow any law contradicting the tenets of Islam, and the legal system defaults to Sharia law in areas not covered by common law.

The last statistics available from the Department of Judicial Administration on flogging sentences show that 90 percent of the people found guilty of “Zina” – fornication – and sentenced to flogging in 2011 were female.

A total of 129 fornication cases were filed in 2011 and 104 people sentenced, out of which 93 were female. This included 10 underage girls (below 18), 79 women between age 18-40 and and four women above 40 years.

Of the 11 males who were sentenced, only one was a minor, with the others aged between 25-40.

Compared to 2010, the overall sentences in fornication increased by 23 percent in 2011, but the number of males sentenced for flogging decreased by 15 percent while the women increased by 30 percent.

According to Maldivian law, a person found guilty of fornication is subjected to 100 lashes and sentenced to one year of house arrest or banishment while a minor’s flogging is postponed until she or he reaches 18.

History of selective enforcement

Masood noted that the Maldives had a tradition of turning away from practices such as the death sentence and forms of corporal punishment, even where these were proscribed in Sharia.

According to Masood, punishments such as removing the hand of a suspect in the case of theft had not been used since the 1960s.

He maintained that there was a history of reviewing the country’s relationship with Sharia law in the past and that a similar process could be had with the debate about flogging.

However, Masood said that all authorities involved in proposed legal reforms would have to tread “a very fine line” in order to tackle long standing “traditions” and beliefs in the country.

“Reforms must be undertaken, but this must be done gradually considering we are dealing with a process embedded in society,” he said. “A certain amount of compromise may be needed.”

Masood said the state was committed to preventing the minor from facing her sentence, while also looking at the potential for reversing the use of flogging as a traditional punishment.

“The little girl will not be flogged for another two years, so we must look at what can be done [in the meantime],” he said.

However the conservative religious Adhaalath Party – the members of which largely dominate the Maldives’ Ministry of Islamic Affairs – has already publicly warned that “no one has the right to criticise any penalties specified in Islam.”

Quoting verses from the Quran, a statement from the party said that no citizen should be allowed to express ideas and opinions about a verdict made in accordance with the religion in a court of law in a 100-percent Muslim country.

The Adhaalath Party further cautioned that criticising issues such as the girl’s flogging sentence would “encourage enemies of Islam, create confusion among the general public and open up opportunities for people who aim to stop the practice of similar penalties commanded in Islam.

“The purpose of penalties like these in Islamic Sharia is to maintain order in society and to save it from sinful acts. It is not at all an act of violence. We must turn a deaf ear to the international organisations which are calling to abolish these penalties, labeling them degrading and inhumane acts or torture,” the statement read.

The Prosecutor General’s (PG’s) Office has confirmed to Minivan News that it was not presently involved with any discussions over possible legal reforms of charges like fornication. Such a mandate lay with Attorney General Azinma Shukoor, the PG’s office said.

Shukoor, who was also recently appointed the current Acting Minister of Gender, Family and Human Rights, was not responding to calls from Minivan News at time of press.

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Maldivian suspects released in rape case of Indian teacher

Two Maldivian suspects arrested in connection with rape, assault and robbery of a young Indian teacher on Dhangethi in Alif Dhaal Atoll in February have been released, while a Bangladeshi national remains in custody.

The Bangladeshi suspect was taken into police custody after the incident as he was about to board a boat departing for Male’.

A community member from Dhangethi claimed that a large number of people came to the harbour prior to the police’s departure with the suspect and called for the Bangladeshi man to “face due justice,” according to Sun Online.

“Some people tried to attack the Bangladeshi man at the time of his arrest, and the conflict was encouraged by the island council,” alleged the source.

The Dhangethi Island Council denied allegations of encouraging a violent confrontation, but confirmed some people at the harbour did attempt to harm the suspect before police brought the situation under control.

Head of the Police Serious and Organised Crime Department, Mohamed Dawood, told local media that it was believed the Bangladeshi man had committed the rape.

“We monitored all vessels leaving the island during the investigation. In that regard, we first took the two Maldivians into custody. But later we arrested the Bangladesh man who was living on the island as his behavior was suspicious,” Dawood explained to Haveeru.

The three men were accused not only of raping the 25 year-old computer teacher, but of stealing her mobile phone, an Acer laptop, and MVR 9000 (US$583) in cash, a source with knowledge of the investigation told Minivan News.

Police recovered the victim’s belongings, and a knife believed to have been used to threaten the woman, inside the home of the Bangladeshi national.

The three suspects were taken by police to the island of Mahibadhoo in Alifu Dhaalu Atoll. None of the men arrested were over the age of 23, the source said.

The attack

The young woman suffered serious sexual trauma, according to police.

Speaking to Minivan News on February 11, an informed source said the woman had been transferred to the atoll hospital’s intensive care unit and was “bleeding uncontrollably” following the attack.

“The victim was taken to Mahibadhoo Hospital where she is being treated for the injuries she suffered from the incident. There was blood all over her room when the police attended the scene,” the source told Minivan News.

According to local media, when police arrived at the scene the young woman was found slumped near her bed, which was covered in blood.

A source close to the victim told Minivan News February 23 that the woman was subsequently transferred to a hospital in India.

“She has still not recovered from the attack, I have been in contact with her, but now she is in India,” he added.

The incident occurred on Sunday (February 10) – some time between 2:30am and 2:45am, the source said.

Local media reported that the woman was teaching a private computer course on the island.

Island Council President Adam said the young woman had been working on the island for less than a month, and described her as a “very kind person who was very friendly towards the local islanders”.

Police Spokesperson Sub-Inspector Hassan Haneef told Minivan News he was checking whether the investigation is still ongoing or if a case has been filed with the Prosecutor General’s office.

The Prosecutor General’s office was not responding to calls at the time of press.

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State Minister for Home Affairs slams President Waheed over govt’s criticism of flogging sentence

Minister of State for Home Affairs Abdulla Mohamed has challenged President Mohamed Waheed Hassan Manik over his stated attempts to review the flogging sentence given to a 15 year-old rape victim by the Juvenile Court, for an unrelated case of fornication.

The criticism follows a tweet by President Waheed in which he stated that he would push to review the Juvenile Court’s sentence of 100 lashes and eight months’ house arrest against the minor.

Mohamed, who is also the Vice President of the Civil Society Coalition, told local media that it was “not acceptable” that the country’s president was making remarks against a penalty proscribed in Islam and called for Waheed to repent.

The case has attracted widespread criticism from the international community, with Amnesty International launching a petition demanding the government repeal the sentence.

The Maldivian government – which is currently vying for re-election to the UN Human Rights Council, launched its campaign in Geneva on February 28 on a platform of “women and children’s rights and the rights of persons with disability” – has expressed “deep concern” at the decision to prosecute the girl.

“Though the flogging will be deferred until the girl turns 18, the government believes she is the victim of sexual abuse and should be treated as such by the state and the society and therefore, her rights should be fully protected,” said the President’s Office in a statement.

“The government is of the view that the case merits appeal. The girl is under state care and the government will facilitate and supervise her appeal of the case, via the girl’s lawyer, to ensure that justice is done and her rights are protected,” the statement added.

State Minister Abdulla’s comments echo similar sentiments made by the religious-conservative Adhaalath Party (AP), which issued a statement declaring that the girl “deserves the punishment” under Islamic Sharia law.

Local media reported Mohamed as saying he intended to meet with President Waheed in order to ask him to publicly apologise for his comments.

Mohamed further stated that the girl – who had also been raped by her stepfather – should be punished for committing and confessing to the sin of fornication, and that this penalty must not be challenged, local media reported.

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Rape victims punished, failed by Maldives justice system

The Maldives court on Tuesday sentenced a 15 year-old girl to 100 lashes and eight months’ house arrest, for having pre-marital sex with a man.

At any given time in the Maldives, thousands of female tourists are on the country’s beaches in bikinis, with their male counterparts. Many of them are straight and gay couples, married or unmarried, enjoying sex on rose petal-covered beds in water bungalows. For them, this chain of islands with white beaches and blue shimmering waters is a short escape to heaven.

While they enjoy a piece of paradise on a luxury resort vacation, just a few miles away 300,000 locals face the grim reality of a struggling democracy and increasingly radicalised interpretation of Islam.

Women and girls are bearing the brunt of this. Calling it sheer hypocrisy would be a gross understatement.

The 15 year-old girl  is from Feydhoo island in Shaviyani Atoll, one of the 200 remote islands in the country with less than a thousand inhabitants. She was arrested last year on the island, when police discovered a dead newborn buried in an outdoor shower area in the yard of the house. The investigation uncovered a disturbing yet common reality in the capital and isolated islands of Maldives: sexual abuse.

The girl’s stepfather had been raping her for years. Her mother assisted this gruesome abuse by turning a blind eye and deaf ear to her pain and cries. When the girl became pregnant as a result of rape, they pulled her out of school afraid that the community would find out the family’s dark secret. They waited patiently for nine months, and killed and buried the newborn after delivery.

Soon after the baby’s body was dug up, the parents were arrested and charged with murder and abuse of a minor.

While any authority with professionalism and common sense would be expected to protect a child who has suffered such horrifying abuse and provide help of a psychologist, the Maldives police and prosecutors had a different plan.

On the contrary, the girl was arrested, interrogated and charged with fornication within a few months by the authorities. They claimed that she had confessed to having consensual sex with another man – not the stepfather. The identity of this man, who has not stood up, been found, arrested or charged to this date, remains a mystery.

And yesterday, despite the ongoing debates challenging the legitimacy in pursuing fornication charges against victims of child sexual abuse, the court issued its ruling to flog the girl 100 times. A conviction against her abusive step father, and neglectful mother is still pending.

This case is just the latest in a series of unashamed attempts by the Maldivian Sharia-Common Law based judicial system to punish sexual abuse victims, instead of providing protection and justice.

While, several in and outside the country are taking to the social media to condemn this ruling as morally wrong, cruel, degrading, and a violation of human rights and protection guaranteed to children and victims of sexual abuse under national and international laws, the police who arrested her, the PG office that charged her and the court which sentenced her have not even flinched.

In fact, shortly after reversing its decision to withdraw the fornication charges, the Prosecutor General stated that they have found “no substantial reason to withdraw the charges” and allowed the trial to continue. They repeatedly emphasised the case is “unrelated to the rape”. Furthermore, both the PG and courts repeatedly defended the decision in media, claiming that there is nothing illegal or wrong in this case.

Under Sharia Law, both men and women – adult and children alike – can be punished with 100 lashes and house arrest if they are found guilty of having pre marital sex or adultery. Of course, the tourists are exempted – they are free to have sex, eat pork or drink alcohol as much as they wish, on islands designated as “uninhabited”.

Flogging is the one remaining Islamic Sharia penalties that continues to be practiced in Maldives, despite the century old moratorium on other Shaira penalties such as stoning, capital punishment and cutting off hands. UN Human Right’s Commissioner Navi Pillay and other international organisation’s calls for the moratorium of flogging have been rejected by current and past governments, amid mass protests from conservative factions of society.

As with any other Sharia offence, fornication is only proved with a confession or four witnesses. Notably, ninety percent of those flogged are women, accordig to the 2011 Judicial statistics report. It revealed that out of the 129 sentenced to 100 lashes, 11 were minors – 10 girls and one boy.

However, in 2010, the parliament passed a legislation to prevent corporal punishment  of children in sexual related offences and provide stringent punishments for child abusers, as a response to curb the widespread cases of incest and child molestation in the Maldives: one in seven children is reported to be a victim of sexual abuse. The legislation for the first time paved an easy road for the prosecution of child sexual abuse cases by reducing the Sharia-based burden of proof, which otherwise makes it impossible to prove the sexual offences without a confession or four witnesses.

This legislation, as part of the common law practiced alongside Sharia, set the precedent that no child below 13 can consent to sex and that any sexual relations will be deemed as child abuse. The same law also adds in clause 25 that no child between 13 – 17 can consent to sex either ,”unless proven otherwise”.

It must be noted that hundreds of children have been protected under this law, and several child rapists and abusers have been put behind bars for decades since it came into effect. However, in this specific case, the authorities report that the girl confessed to having consensual sexual relations, and that therefore it cannot be treated as a case of abuse.

But what is highly questionable is the failure by the state to provide a motive that can justify pressing charges against an abused victim, especially a child, with utter disregard to the mental trauma she has suffered in an endless cycle of abuse.

In the past, the court had sentenced a man for abusing a 16 year-old girl. However, the same girl was sentenced to 100 lashes and house arrest after being found guilty of confessing to having consensual sex with the same man who was found to have abused her. This conflicting ruling, stands out as clear evidence that fornication charges against minors in sexual abuse cases are being pursued by authorities, simply because its legally possible to do so with a confession, regardless of whether the victim is abused or not.

In the face of growing international pressure over such incidents, the government claimed in media that it would review and “correct” laws that victimise young women and minors who have suffered sexual abuse. However, no information was made public of any such attempts apart from this public condemnation.

Another issue worth noting is also the significantly low rape convictions in cases where the rape victim is an adult. Annual judicial statistics report show that in past three years, zero cases of rape have reached a positive verdict. This year alone, three rape cases have been reported,while 1 in 3 women aged between 15 – 49 are found to be victim of physical or sexual abuse – a statistic that is a reminder of a justice system that is failing women in every way possible.

According to Human Rights Lawyer Mohamed Anil, rape is defined as ‘forced fornication’ in the currently practiced outdated laws. The aforementioned legislation provides special provisions in child abuse cases, however, he explained, rape and sexual assault victims aged 18 or above, are denied justice because of the Sharia’s burden of proof – confession of the rapist or four male witnesses – is required to prove fornication, whether forced or consensual.

A state prosecutor once commented that proving rape is “next to impossible” despite the most prudent investigations, because the only two kinds of admissible evidence is never available. Both lawyers have said that this cannot be changed unless the amended penal code – which includes rape as an offence-  is passed by the parliament, where it had been stuck for more than half a decade.

Alternatively, the parliament could pass the sexual offences bill submitted by MP Mohamed Nasheed. This bill defines actions to be taken against specific types of sexual offences, including rape, spousal rape, prostitution, sexual trafficking, bestiality and incest etc. While submitting the bill, Nasheed echoed the immense need for an updated legislation to deal with the modern day sexual offences to bridge the shortcomings, especially related to proof and evidence and leniency in the current legal structure.

Meanwhile, in recent years reports of infanticide and baby dumping have increased to alarming levels, as women and underage girls – including those who become pregnant as a consequence of rape – are forced to take desperate measures, such as self-induced abortions, infanticide or leaving babies abandoned. Such was the case with the 15 year old girl in question.

With an unforgiving system and laws stating that is a punishable offence to give birth outside of marriage, driven by a thirst to punish the victims rather than protect them, victims find themselves alone, helpless and forced to remain silent.

These are just a small fraction of the many deep-rooted gender issues in the justice system of Maldives, that ripple outward from the branches of justice system into the entire society.

In her recent visit to Maldives, UN Special Rapporteur on the independence of judges and lawyers issued a statement in which she commented “all members of the justice system should be sensitised to gender equality and women’s rights to make access to justice a reality for women in the Maldives.”

She also also expressed concern over low representation of women in the judiciary. There are currently no women sitting on the Supreme Court and only eight women sitting in the High Court, the Superior Courts and the Magistrate Courts. It is arguable that the gender issues in the system are arising due to lack of a diverse representation in the court benches and decision-making bodies.

When women and girls are stripped off their dignity and rights for having sex or being raped, it is not an issue that can be simply ignored. Meaningful action is needed by the authorities to remove the gender issues through legal and structural reforms, and prevent the culture of impunity currently enjoyed by sadistic perpetrators such as rapists and child molesters.

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Dhangethi rape victim suffering from “serious sexual trauma”: Police

A young Indian teacher who was raped on the island of Dhangethi in Alif Dhaal Atoll on February 11 has suffered serious sexual trauma, according to police.

Head of Serious and Organised Crime Department Mohamed Dawood told local media that the woman – who was allegedly raped at knife point – was being treated in the atoll hospital for injuries sustained in the attack.

According to local media, when police arrived at the scene the young woman was found slumped near her bed, which was covered in blood.

So far three men, including a Bangladeshi national, have been arrested by police in connection to the rape and assault of the teacher. Dawood told local media that it was believed the Bangladeshi man had committed the rape.

“We monitored all vessels leaving the island during the investigation. In that regard, we first took the two Maldivians into custody. But later we arrested the Bangladesh man living in the island as his behaviour was suspicious,” Dawood told local media.

A source close to the victim told Minivan News today that the woman has now been transferred to a hospital in India.

“She has still not recovered from the attack, I have been in contact with her, but now she is in India,” he added.

Following the attack the perpetrators stole her laptop computer, mobile phone and her previous month’s salary.

Police have since recovered the victim’s belongings, including the knife believed to have been used to threaten the woman, inside the home of the Bangladeshi national.

Minivan News was awaiting more information from Police Spokesperson Sub-Inspector Hassan Haneef at time of press.

Speaking to Minivan News on February 11, a source said that the woman had been transferred to the Atoll hospital’s intensive care unit whilst “bleeding uncontrollably” following the attack.

Local media reported that the woman was teaching a private computer course on the island.

Island Council President Adam said the young woman had been working on the island for less than a month, and described her as a “very kind person who was very friendly towards the local islanders”.

Dhangethi is the third largest populated island of Alif Dhaal Atoll, with a population of around 1200 people.

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Police arrest three men in connection with rape of Indian teacher on Dhangethi

Additional reporting by JJ Robinson.

The police have arrested three men in connection with the rape of an Indian teacher on the island of Dhangethi in Alifu Dhaalu Atoll, a source with knowledge of the investigation has confirmed to Minivan News.

‘’The three men were arrested and have been taken to the island of Mahibadhoo in Alifu Dhaalu Atoll,’’ the source said. None of the men arrested were over the age of 23, he added.

The incident occurred on Sunday (February 10) – some time between 2:30am and 2:45am, the source said.

“The victim was taken to Mahibadhoo Hospital where she is being treated for the injuries she suffered from the incident. There was blood all over her room when the police attended the scene,” Minivan News was told.

The source said the three men were accused not only of raping the 25 year-old computer teacher, but of stealing her mobile phone, an Acer laptop, and MVR 9000 (US$583) in cash.

‘’She lived alone in a big house consisting of three rooms. The suspects may have climbed over the wall to get in,’’ the source said, adding that the victim had not spoken to anybody following the incident.

Police Sub-Inspector Hassan Haneef confirmed to Minivan News this morning that there had been some “developments” in the investigation, and that police would be releasing a statement.

“She is in hospital recovering and is getting better day by day,” he said.

India’s Ministry of External Affairs meanwhile told a press conference of Indian journalists on Tuesday (February 12) that the Indian High Commission in the Maldives was investigating the matter.

“Apparently the lady in question works in a private computer school in the Maldives. She was also badly injured. She has been given blood transfusion, and her condition now is stable,” the MEA spokesperson said, adding that the Indian government had contacted the Maldives’ acting Minister for Human Rights, Gender and Family, Dr Mariyam Shakeela.

“The High Commission [on Tuesday] morning sent two officials including a lady officer to the atoll to try and provide whatever support we can on account of this sad happening there. We have taken it up quite strongly with the government of Maldives, and we hope that justice will be done in this case promptly,  and this has been assured to us by the concerned Maldivian authorities,” the MEA spokesperson said.

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