Lawfulness of corporal punishment

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Corporal punishment is lawful in the home.

Children have limited protection from violence and abuse under the Law on the Protection of the Rights of the Child (1991) and the Family Law (2000, in force 2001). Chapter 2 of the Law on the Protection of the Rights of the Child concerns the responsibilities of parents and states in article 15: “Special attention should be given to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse. The authorities should be informed if this occurs.” Article 18 states: “Severe punishment which may harm the child physically or mentally should not be used.” Article 18 of the Family Law states: “No child shall, even as a measure of discipline be subjected to punishment which may cause physical injury or which may be detrimental to the health of the child.”

At a meeting of the South Asia Forum in July 2006, following on from the regional consultation in 2005 of the UNSG’s Study on Violence against Children, the government made a commitment to prohibition in all settings, including the home. But the government has also stated a commitment to retaining corporal punishment under Islamic law (2006) and as at June 2007, the new draft Penal Code apparently legalizes corporal punishment in the home, schools and institutions (concluding observations of the Committee on the Rights of the Child – see below).

Schools

Corporal punishment is prohibited in schools under article 10 of the Law on the Protection of the Rights of the Child, which states: “Punishment in school should be appropriate to the child’s age and should not affect them physically or psychologically.” This is reiterated in the Ministry of Education Handbook for Teachers (updated 2002), which also states (in section 2.7): “Maldavian Law does not allow teachers to inflict corporal punishment on students.” But as at June 2007, the new draft Penal Code apparently legalizes corporal punishment in schools (concluding observations of the Committee on the Rights of the Child – see below). An Education Bill was due to be tabled in parliament in 2007, but we have no details of its provisions.

Penal system

Corporal punishment is lawful as a sentence for crime. The Law on the Protection of the Rights of the Child prohibits imposing cruel and degrading punishment on children, and the Penal Code (amended 2002) does not include corporal punishment among permitted sentence for crimes that fall outside of Shari’a law. However, under the Penal Code, the Sentencing Guidelines 298 (“Rules on Investigation Adjudication and Sentencing in Respect of Offences Committed by Minors”) and the Rules for Sentencing No. 6 (2003), the Hadd punishments of Islamic law are applicable to any person who has reached puberty for crimes of apostasy, rebellion, fornication, defamation, drinking, theft and offences relating to homicide. Available sentences include corporal punishment, though the sentence of lashing is reportedly postponed until the young person reaches the age of 18 years. The Disobedience Law also provides for corporal punishment as a sentence. As at January 2007, there were plans to draft a Juvenile Justice Act.

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. As at June 2007, the new draft Penal Code apparently legalizes corporal punishment in institutions (concluding observations of the Committee on the Rights of the Child – see below).

Alternative care

There is no explicit prohibition of corporal punishment in other institutions and forms of childcare. The Education and Training Centre for Children operates under the Ministry of Education and so corporal punishment is prohibited in that institution under article 10 of the Law on the Protection of the Rights of the Child and the Handbook for Teachers (see above). As at June 2007, the new draft Penal Code apparently legalizes corporal punishment in institutions (concluding observations of the Committee on the Rights of the Child – see below).

 Workplace

There is no explicit prohibition of corporal punishment of children in situations of employment. As at January 2007, an Employment Bill was under discussion.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is concerned at the information that section 44 of the new draft Penal Code would legalize corporal punishment of children at home, schools and institutions. The Committee is also seriously concerned that, contrary to article 37 (a) of the Convention, under applicable law of the State party, persons who have reached puberty may be subject to flogging.

“In the light of the consideration of the new draft Penal Code, the Committee urges the State party to take all the necessary measures to ensure that persons who committed crimes while under the age of 18 are not subjected to any form of corporal punishment, including as a sentence for offences, and that corporal punishment as a disciplinary measure is prohibited by law in the home, alternative care settings and justice institutions, schools and workplace settings. It recommends that the State party take other appropriate measures, such as positive education and training programmes as well as public awareness-raising campaigns, to eliminate this practice which directly conflicts with the equal and inalienable rights of the child to respect for her/his human dignity and physical integrity. Finally, it draws the attention of the State party to the Committee’s General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/C/GC/8).

“The Committee welcomes the information that the State party is in the process of establishing child helpline services. The Committee regrets that insufficient measures are being taken to address the serious problem of violence against children, child abuse, including sexual abuse, and ill-treatment of children in the State party…. It also notes with concern that domestic violence is widely tolerated in the Maldivian society and that Maldivian legislation does not expressly prohibit corporal punishment in the family….

“In the light of article 19, other relevant provisions of the Convention and taking into account the recommendations of the Committee adopted on its days of general discussion on children and violence (CRC/C/100, para. 866 and CRC/C/111, paras. 701-745), the Committee urges the State party to:

1. undertake a national study on domestic violence, ill-treatment of children and child abuse in the home assessing the scope and nature of this problem as well as the impact of legal measures to address violence against children with a view to prohibiting all forms of physical, sexual and mental violence against children, including sexual abuse in the family ….

“With reference to the United Nations Secretary-General’s Study on violence against children, the Committee recommends that the State party:

1. take all necessary measures for the implementation of the overarching and setting-specific recommendations contained in the report of the independent expert of the United Nations Study on violence against children (A/61/299) taking into account the outcome and recommendations of the Regional Consultations for South Asia (held in Pakistan from 19 to 21 May 2005);
2. use these recommendations as a tool for action in partnership with civil society and in particular with the involvement of children to ensure that every child is protected from all forms of physical, sexual and mental violence and to gain momentum for concrete and, where appropriate, time-bound actions to prevent and respond to such violence and abuse; and
3. consider seeking technical cooperation from UNICEF, OHCHR and WHO.

“...the Committee notes with concern that:

d. corporal punishment is lawful as a sentence for crime and for disciplinary purposes...

“The Committee recommends that the State party continue and strengthen its efforts to ensure the full implementation of juvenile justice standards, in particular articles 37, 40 and 39 of the Convention and other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (the Havana Rules), taking into account the Committee’s newly adopted General Comment No. 10 on children’s rights in juvenile justice (CRC/C/GC/10). It recommends that the State party:

e. abolish the use of corporal punishment as a sentence for crime and for disciplinary purposes...”

(8 June 2007, CRC/CDV/CO/3 Unedited Version, Concluding observations on second/third report, paras. 55, 56, 62, 63(a), 64, 98(d) and 99(e))

“While aware of the efforts undertaken by the State party for the prevention of ill-treatment of children, the Committee expresses its concern at the insufficient awareness of and lack of information on ill-treatment and abuse, including sexual abuse both within and outside the family, at the insufficient legal protection measures, at the inappropriate resources, both financial and human, as well as at the lack of adequately trained personnel to prevent and combat such abuse. The insufficiency of rehabilitation measures for such children and their limited access to justice are also matters of concern.

“In the light of article 19 of the Convention, the Committee recommends that the State party take all appropriate measures to prevent and combat ill-treatment within the family and sexual abuse of children. It suggests, inter alia, that the authorities set up social programmes to prevent all types of child abuse as well as to rehabilitate the child victims. Law enforcement should be strengthened with respect to such crimes; adequate procedures and mechanisms to deal with complaints of child abuse should be developed, such as special rules of evidence, and special investigators or community focal points.”
(5 June 1998, CRC/C/15/Add.91, Concluding observations on initial report, paras. 16 and 36)