Annex 3 – diagram of interrelated child protection concerns
This report is submitted in accordance with Article 44 of the Convention of the Rights of the Child (hereafter ‘the Convention’) and covers the period from the date of Maldives’ combined second and third report (CRC/C/MDV/3), March 14th, 2006 to August 31st 2012. The due date for this report was September 12, 2011.1 The Government of Maldives sincerely regrets the delay in submitting this periodic report.
Major political changes have taken place in the Maldives during the reporting period. As the rapidly evolving political landscape will be referred to throughout the report, it is important to give a brief account of it upfront.
With the change of government in 2008, the Ministry of Gender and Family was restructured into a Department within a new Ministry of Health and Family. This led to considerable cuts in both the human and financial resources available for certain aspects of the implementation of the Convention. In spite of this, the fact that children’s rights became part of the public health discourse paved the way for some significant progress in the years that followed.
The change of government also meant that mandates were redrawn and new directives were issued. This was coupled with cuts in training for critical technical staff, such as social workers and counsellors. In fact, not a single training programme was conducted for social service workers in the three years leading up to 2012. In late 2012 a refresher course was provided to social service workers in the Ministry of Gender, Family and Human Rights. While there were political and economic reasons for these reforms, they are believed to have had an impeding effect on the Government’s overall ability to implement the Convention.
The reporting period also saw a redundancy package offered to civil servants, as part of an effort to downsize a bloated civil service and to reduce public expenditures. This meant that approximately 20 percent of the technical staff within the Department of Gender and Family Protection Services separated from the civil service and their posts were abolished. This happened after the Department had already lost technical staff as a result of the absorption into a new Ministry, thus amplifying the effect of the losses.2
In February 2012, the Government changed again, and recent reforms have included the creation of a new Ministry of Gender, Family, and Human Rights, which will now assume the main coordinating role in the implementation of the Convention. While it remains to be seen what substantive changes this restructuring will bring about, it has already given rise to a number of administrative and budgetary modifications, and it will take some time to get new routines and practices properly established.
This report is being drafted in the midst this transition period. The report will refer to ‘the Ministry of Gender and Family’ in relation to activities and events that took place prior to the changes introduced in 2008. It will refer to ‘the Department for Gender and Family Protection Services’ (under the Ministry of Health and Family) in relation to activities and events during the period between 2008 and early 2012. For current and future activities and events, the new name ‘the Ministry of Gender, Family and Human Rights’ will be used.
Structure of the report
This report will, in accordance with the treaty specific guidelines regarding form and content of periodic reports, seek to show what action has been taken to give effect to the Committee’s recommendations, but also elaborate on the dilemmas and challenges that have arisen in the course of implementing the Convention.3 Thus every section of the report will follow the order set out below:
One or two paragraphs offering a brief overview of the developments in respect of the rights in question during the reporting period, as well as a snapshot of the current situation;
Responses to the Committee’s observations, offering clarifications and updates;
Responses to each of the specific recommendations issued by the Committee (the paragraphs that appear in bold letters in the concluding observations), and;
Information on developments, emerging issues, and challenges that are not necessarily referred to in the concluding observations, but which nevertheless warrant the Committee’s attention.
The Maldives has submitted its initial reports under the Optional Protocol on the sale of children, child prostitution, and child pornography (hereafter ‘OPSC’) and the Optional Protocol on the involvement of children in armed conflict (hereafter ‘OPAC’).4 Hence, this periodic report will also, in accordance with the treaty specific guidelines, ‘include further information relevant to the implementation of the Optional Protocols…’5
The Ministry of Gender, Family and Human Rights prepared this report through a consultative process in which inputs were sought from a wide range of stakeholders, including from many children of all age groups, in three atolls and in Malé. Also in accordance with the treaty specific guidelines, most statistics are confined to annex 1.6
1. General measures of implementation (articles 4, 42 and 44 of the Convention) Committee’s previous recommendations
The Maldivian Government would like to express its appreciation to the Committee on the Rights of the Child (hereafter ‘the Committee’) for its analysis of the combined second and third periodic reports from the Maldives, and in particular for the constructive recommendations contained in the Committee’s concluding observations.
The Committee made the specific recommendation to ratify the ‘conventions of the International Labour Organization (ILO) regarding the rights of the child.’7 Maldives takes its international treaty obligations very seriously. Maldives has therefore sought to harmonise its legislation with the above-mentioned treaties prior to ratification. The Employment Act (2008) was passed, which tightly regulates the employment of minors and gives effect to most of the provisions of the ILO Core Conventions.8 In May 2009, the Maldives became the 183rd member of ILO and is currently working with the ILO Secretariat on labour law reform and labour administration. On 23rd December 2012 the Maldives ratified the 8 core conventions of the ILO including the Child Labour convention. This Convention is scheduled to come into effect in March 2013.
With regard to reservations generally, Maldives reasserts its right, under article 19 of the Vienna Convention on the Law of Treaties (1969) to formulate reservations, subject to the conditions set out in subsections (a) – (c) of the same article. Maldives does not consider the reservations it has made to articles 14 (1) and 21 of the CRC to be ‘incompatible with the object and purpose of the treaty’ (article 19 (c) of the Vienna Convention) and hence they would appear to be legal under the Vienna Convention, as interpreted in the jurisprudence of the International Court of Justice.9
As emphasised in previous reports, Islam is the foundation of our nation and our society.10 Hence, as prescribed by the Constitution, ‘[n]o law contrary to any tenet of Islam shall be enacted in the Maldives.’11 This applies to municipal law as well as international law. Maldives cannot submit itself to a provision, which is ‘contrary to any tenet of Islam’.
As the Committee has pointed out, article 21 only ‘refers to state parties which “recognise and/or permit the system of adoption”’.12 Maldivian law neither recognises nor permits any system of adoption whereby a person attributes their adopted child to themselves.13 Hence it would appear that withdrawing the reservation to Article 21 would have no practical effect. The wellbeing of children under legal guardianship is safeguarded by the new Foster Care Regulations (which are yet to be gazetted, but are applied in practice), as well as by Islamic law. A much-cited hadith epitomizes our law and values with regard to children whose parents are unable to care for them; the Prophet (peace be upon him) said: ‘“I and the one who sponsors an orphan are like this in Paradise.” Then he joined his index and middle fingers.’14
Article 27 of the Vienna Convention on the Law of Treaties provides that, where a treaty conflicts with a state’s municipal law (including the state’s constitution), the state must still meet its obligations under the treaty. Given this obligation, it should be reiterated that a withdrawal of the reservation to article 14 of the CRC, would require an amendment to the Constitution.15 If a court were to find that implementing article 14 would be unconstitutional, then the Government might find itself in the conundrum of having to act ultra vires in respect of the Constitution, in order to fulfil its obligations under international treaty law.
In accordance with advice from the Committee, Maldives has continued its efforts to reform legislation and regulatory frameworks to ensure conformity with the Convention.16 Here follows a summary of the most significant legislative and regulatory measures aimed at strengthening the protection of children’s rights.
Amendments to Sentencing Guidelines 2008
Article 173 (sentencing guidelines for sexual offences)17 of the Regulation on the Conduct of Court Proceedings was amended to introduce stricter mandatory prison sentences for sexual offences.18
Special Measures for Perpetrators of Child Sexual Abuse 2009
This legislation facilitates the prosecution of child sexual abuse offences and it also radically increases the sentences that can be handed down in respect of such offences.19
The Civil Service Act 2007
The legislation and its subsequent regulations in 2008 and 2010 contain provisions that support families of civil servants and assist parents with their family responsibilities.20 Measures include, inter alia, paid maternity leave, paid family responsibility leave, and one year unpaid leave for either the father or the mother after the paid maternity or family responsibility leave. The 15th amendment to the Civil Service Regulation 2010, which was gazetted in August 2012, introduces financial aid for minors, widowed spouses and elderly parents of any civil servant who passes away while on duty.
Protection and Financial Assistance to Persons with Disabilities Act 2010
The act and its accompanying regulations set out the procedures for (i) identifying persons with disabilities (ii) establishing a database, and (iii), providing financial and other support to such persons and their families.21
Thalassaemia Control Act 2010
The law establishes a body that will set up a registry of thalassaemia patients and develop government procedures to provide the needed medical and financial assistance to those affected by thalassaemia.22 This body will also create a mechanism to identify and test for thalassaemia carriers.
Domestic Violence Act 2012
This new legislation is designed to protect victims of domestic abuse.23 It introduces several remedies such as protection orders, restraining orders, and maintenance orders.
National Health Insurance Act 2011
This critical piece of legislation provides all citizens and persons living in the Maldives with a health insurance programme, regardless of their ability to pay.
Drugs Act 2011
With the enactment of this legislation, drug use will henceforth be considered a medical and social predicament, to be addressed through treatment and rehabilitation, rather than imprisonment and punishment.
Pre-Schools Act 2012
This law is part of the effort to formalise early childhood education, and to make such opportunities accessible on an equitable basis to all children regardless of economic and social status.
(k) Pensions Act 2009
Grandparents and even great grandparents play an important role in the upbringing of children in Maldives. The Pensions Act provides economic empowerment for retired people, who often use these resources to support their children and grandchildren.24
(l) Public Health Act 2012
This law establishes mandatory reporting provisions for communicable diseases. It also makes it possible to fine anyone who refuses to vaccinate a child or who otherwise obstructs the vaccination of a child.25
In addition to the above-mentioned pieces of legislation, which have been enacted during the reporting period, there are a number of bills pending enactment. The 2008 Constitution significantly altered the system of governance in the Maldives. Major legislative reforms were, and still are, needed to give full effect to the Constitution. In 2009, the Government identified no less than 165 pieces of legislation that had to be researched, drafted, agreed upon, and passed by the Majlis.26
At the same time, after the 2009 parliamentary elections, the relatively loose coalition government that was formed did not enjoy a majority in the Majlis. To pass legislation, they needed the support of independent members.27 This uncertain parliamentary situation meant that the legislative process was slowed down for several years. The political tensions between the various parties escalated following February 7th, 2012, which in turn has further hampered efforts to get important legislation passed. A backlog of bills has therefore been building up over the years, including the following proposed laws, which have a direct bearing on the protection and welfare of children in the Maldives.
Child Rights, Child Care and Child Protection Bill
This proposed legislation is being drafted to replace the existing Act on the Protection of the Rights of Children.28 The first attempt at amending the existing act failed to incorporate key provisions on the child protection system. With assistance from UNICEF, a chapter on child protection systems is now been added to the bill. The proposed legislation will, when it is enacted, ensure that Maldivian law is brought into full compliance with the Convention and its optional protocols.
Minimum Standards for Children’s Home
These standards were drafted in 2007 and are pending approval by the Attorney General’s Office before they can be gazetted.
Regulations on State Custody
The regulations have been finalized and are currently awaiting endorsement by the Attorney General’s Office. The regulations set forth procedures for removing children from their families in situations where children suffer physical and psychological abuse.
Regulations on Foster Care
These regulations have also been finalised, and are awaiting endorsement from the Attorney Generals’ Office. These regulations determine procedures for granting legal guardianship of children. The objective of the regulations is to provide such children with the opportunity to be brought up in a secure family environment and to minimise institutional care.
A new bill on juvenile justice has been finalised and is also awaiting approval by the Attorney General’s Office. If passed in its current form, this law will improve the protection of children in conflict with the law in a number of ways, as discussed under the juvenile justice heading in this report.
The Education bill was presented to the Majlis in September 2010. Among other things, the proposed bill introduces compulsory education up to grade 10, and states that all children in the Maldives must have access to free primary and secondary schooling.
The Evidence Bill
This law will, inter alia, expand the admissibility of forensic evidence in Maldivian courts. This will facilitate the prosecution of various types of child abuse and sexual assault offences.
Social Security Bill
The bill, which has been tabled in the Majlis, aims to establish systems for the provision of a range of financial benefits to, inter alia, low-income households, single parents, and persons with disabilities. One of the explicit aims of the proposed law is also to reduce economic inequalities in the Maldives through wealth distribution.
(i) Human Trafficking and People Smuggling Bill
This bill, which has also been tabled in the Majlis, identifies trafficking of minors as an aggravated offence.