A recent case in the Maldives has highlighted some disturbing breaches of human rights and has led to a large scale petition being launched calling upon the Maldivian government to address their laws with a matter of urgency.
The case revolves around a 15 year old girl being sentenced to 100 lashes in public and 8 months’ house arrest for having pre-marital sex with a man.
The 15 year-old girl, from Feydhoo island in Shaviyani Atoll in the Maldives, was arrested when police discovered a dead newborn buried in the yard of the family home. The investigation uncovered a disturbing set of circumstances that is unfortunately a common reality of sexual abuse in the Maldives. (Another Maldivian case)
During the investigation, it was established that the girl’s stepfather had been raping her for years. The girl’s mother had in effect, ignored the goings on and failed to protect her daughter from the stepfather. As a result of the ongoing abuse and rape, the girl fell pregnant.
Elements of guilt must have existed in the minds of the couple, as they removed the girl from school to prevent anyone finding out. The baby was born and immediately killed and buried.
I make no apologies for the graphic nature of this case, it is as reported and the full story needs to be understood to be able to determine the relevant issues in this case.
The stepfather and mother still have pending charges against them for the atrocities mentioned above, namely for murder and abuse, but the real sting in the tail is this:
The reason the girl has been sentenced to 100 lashes and 8 months’ house arrest is for an act of fornication with another man (other than her stepfather). However, that other man has never been named, come forward, or even arrested and some may argue that the ‘other man’ may not even exist.
Without over complicating the law of the Maldives, it’s legal principles are largely a Sharia-Common Law based system, as the Maldives are predominantly Islamic.
The offence with which she is charged, is the offence of ‘Zina’ which falls under the Islamic sexual jurisprudence of ‘Fiqh’, which is an expansion of the Sharia code. ‘Zina’ translates as ‘unlawful sexual intercourse, which includes: intercourse between individuals who are not married to one another and encompasses extramarital sex and premarital sex. interestingly ‘Zina’ does not differentiate between adultery and fornication (The term ‘Fornication’ has differing religious, cultural and societal meanings, in this articles context, it refers to the offence of ‘Zina’ as identified above).
The punishment by the Maldivian Judge is in line with ‘Qur’an 24:2′.
Many would clearly be appalled that a 15 year old girl will be subjected to 100 lashes, this is in fact in line with Sharia-Common Law, but it has been widely criticised by organisations namely Amnesty International and even a bill was laid before the Maldivian Parliament by MP Nasheed (the bill was on his blog site, but has been deleted by an unknown source according to his new blog here) updating the current law to reflect modern society and defines action to be taken against specific sexual offences.
It could be argued that the legislation in the Maldives in terms of Sharia-Common law, more likely than not, does not share the same elements of statutory interpretation afforded in this country. For example, was it the intention for this law to apply to 15 year olds? If statutory interpretation exists and considering the law surrounding consent and additionally the protection of a vulnerable individual who the law is designed to protect, the Judiciary would have a duty to interpret the intention of Parliament through the ‘rules of statutory interpretation’, of which three rules are used to assist the Judiciary: the Golden Rule, the Literal Rule and the Mischief Rule, however they are not strictly binding.
Whilst there is much criticism of the Judge for convicting the girl, he was following the law. In addition the punishment for that offence was according to Sharia-Common Law. The issues here are various, firstly the fact that the law does not reflect the age of the girl, secondly, the law of consent does not exist and finally the punishment for a child of that age is draconian.
The law clearly needs to be addressed to prevent an overtly unjust conviction and indeed to prevent punishment of young vulnerable children who should be protected. This girl is clearly already damaged as a result of the abuse and rape, and should not have suffer further humiliation or physical pain more than she has already suffered, consideration should be given to the ‘best interests of the child’.
Fortunately, ‘the government of Maldives has recently committed to protecting the 15-year-old, However ‘She is still at risk of being flogged and house arrest while the conviction hangs over her head.’(Source)