OnIslam.net

New Law for Our Children

Islamic Charter for Children vs. Egyptian Law
By Kamilia Helmy
Researcher, Community activist - Egypt
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The Islamic Charter for Children was issued by the International Islamic Committee for Mother and Child with the assistance of a group of dignified Islamic scholars. The aim was to address the needs of Muslim children. In the Egyptian newspaper Al-Osbou`, the article entitled "Debate Between Religion and Law Scholars About the Amendments in the Children's Law" took the Islamic Charter for Children as a reference. However, there is a difference between the Islamic Charter for Children and Egypt's amended Children's Law.

Period of Childhood

 

In Islam, childhood ends with puberty, but the Egyptian law stipulated that childhood extends to the age of 18 years. In reality, this implies that a child would be treated as a child until he or she is 18 years old, and this blurs childhood, puberty, and adulthood, just as we can witness today.

With regard to marriage, Article 23 of the Islamic Charter for Children states,

 

Islamic Shari`ah urges early marriage of youth, preventing them from causes of moral and sexual perversion.

 

On the other hand, in the amended Children's Law,

 

It is forbidden to authenticate a marriage contract for those who did not complete 18 full Gregorian years of age for both sexes.

This is a candid opposition to the Islamic Shari`ah, which allows marriage from puberty (before 18 years of age). This is the right that Allah has granted to us, but the amended Children's Law deems it a crime that earns a minimum imprisonment of 3 months or a fine that is between LE 500 and LE 1000, as stated in the Egyptian law.

  

As for child protection, in the amended Children's Law, the expression "being exposed to danger" was changed to "being exposed to perversion." The concept of danger was broadened, and accordingly the "imminent danger for a child" was defined as follows:

 

Every positive or negative action that endangers the child's life, physical safety, or spiritual safety in a way that cannot be avoided as time goes by. And, accordingly, in any case of "imminent danger," the Public Administration for Child Rescue or the childhood protection committee should take necessary and immediate measures to take the child out of the place in which he or she is exposed to danger and to move him or her to another secure place, and this includes support from the people in power when necessary.

 

The childhood protection committees are equal to the partial courts in their power. These committees are entitled to take immediate actions to place the children in one of the institutions that host children, including rehabilitation institutions, treatment institutions, or (suitable) social or educational institutions, for some time till the danger is totally eliminated.

Child protection committees can decide whether to allow the child to remain with his or her family on the condition that the parents abide by the measures necessary to eliminate the danger to which the child is exposed. This should be within a specified period of time and under periodical supervision from the childhood protection committee in charge.

All these strict security measures are for protecting the child from danger, while the concept of danger itself was not clearly and specifically defined.


  • So, would it be considered that parents who punish their children for learning purposes are endangering their children's security?
  • Or, would it be considered that abstaining from giving the child his or her pocket money as a punishment for a wrong action "a negative action that endangers the child's emotional well-being"?
  • Or, would the cases of female or even male genital mutilation be considered an "endangerment of the child's physical well-being"?

And where is the right that Islamic Shari`ah has given to parents in the upbringing of their children? Punishment is a means of disciplining children. The broadness of the definition of the "imminent danger threatening the child" allows for explanations that follow personal inclinations and misconceptions. The different forms of punishment a parent or custodian uses in disciplining his or her children can easily be interpreted as "physical abuse" or "spiritual abuse." So, what is danger? And how can one measure it? What is the specific definition of "spiritual abuse"? And who decides on all these issues? Is taking the children from their families and putting them in a "more secure place" not exposing the children to greater danger?

Discipline

In addition to the above, the Children's Law minimizes the educative role of the parents. It increases the areas of governmental intervention in the personal lives of families. This intervention would inevitably lead to planting the seeds of disunity and conflict between parents and children. It would lead to the collapse of the parents' image in the eyes of children. The basis upon which a family survives is compassion and mercy, and the basis of a child's spiritual development is parental care and upbringing. Almighty Allah says,

(And say, "O my Lord, have compassion on them, as they brought me up (when I was) little.") (Al-Israa' 17:24) 

In the Islamic Charter for Children, Article 27 tackles the right of children in the form of comprehensive protection. It states,

This right does not contradict the prerequisites of teaching the child the necessary disciplines and manners, including pedagogically accepted punishments that incorporate a wise and balanced combination of explanation, persuasion, enticement, and encouragement with deterrents and punishments according to relevant Shari`ah, legal, and psychological regulations.

By Word of Mouth

 .

The amended Egyptian law makes it an obligation on every person aware of an "endangered" child to give notice to the National Council for Childhood and Motherhood or the childhood protection committee in charge. The law also punishes, by imprisonment or penalty, anyone who does not abide by the rules stated in the two previously mentioned articles.

This part of the law encourages the sin of spying and gossiping (namimah). It is a huge infri ngement of the morals that encourage keeping secrets of private matters. This should not be a potential sin deserving punishment or penalty. How would a society then have any sense of security if all its members are spying on one another while fearing those who know about their personal affairs? Would not this open the door to malevolence and vendetta, especially as the law does not include any punishment for those who make false reports? Wouldn't this encourage some people to interfere with the personal affairs of others, replacing compassion with hatred, and thus fragmenting the society?

 

Education

 

Article 45 of the Egyptian law states:

 

Impeding or preventing the child's essential education is prohibited, and whoever does this would be fined between LE500 and LE2000.

 

Wouldn't it be better that the law rewards the parent who insists on educating his or her children? The law does not put into consideration the disparities in the mental and psychological abilities of children. Will the poor parents who cannot afford the cost of educating their children in the first place be able to afford the penalty of LE 2000? And who is responsible for specifying the cause of the child's inability to get the essential education?

On the other hand, in the Islamic Charter for Children, Article 25 states,

Basic education shall be made compulsory and available without cost for all."And in Article 25, Paragraph 1, "Providing … financial assistance when necessary." And in Article 25, Paragraph 3, "Onthe basis of mental capacity, as well as physical and psychological suitability."

 

Criminal Liability of the Child

 

The amended law reduces punishment in a defective way, making the concept of punishment in legislation lose its meaning and lose its deterrent role for the individual and society. The law reduces the punishment for felonies to that for misdemeanors and the latter to no punishment. This endangers the social peace and neglects the rights of the victim.

  

Also, in the amended law, Article 112 states,

 

If a child between 15 and 18 years committed a crime that deserves execution, life imprisonment, or rigorous imprisonment, then the punishment would be imprisonment. If the crime deserves imprisonment, then the punishment would be not less than 3 months. Instead of announcing the punishment of durance, the court is allowed to place the child in one of the social institutions for not less than one year, according to this law.

 

If a child commits a misdemeanor that deserves durance or penalty, the judge can pronounce judgment in line with either the fourth, fifth, or sixth measure mentioned in Article 101 of this law, instead of resorting to one of the punishments prescribed for the misdemeanor.

A child who is less than 15 years of age is totally exempted from punishment if he or she commits any crime, and one of the measures mentioned in Article 101 should be applied. These measures are as follows:

  1. Reprimanding the child.   
  2. Entrusting the child to the custodian.
  3. Offering vocational training to the child.  
  4. Compelling the child to do certain duties.
  5. Performing the judicial test.
  6. Compelling the child to work for the public benefit without harming the child's health or psychological well-being; the regulations specify such work and its regulations.
  7. Committing the child to a specialized hospital.
  8. Committing the child to an institution of social care.

Other than confiscation and shutoff of businesses, no punishment or measure by means of any other law should be applied to the child. So, for example, if an adolescent aged 17 years and 6 months committed murder or rape, this "child" would be punished by imprisonment. If this child set fire in a place or caused a permanent deformity in another person, he or she would be punished by durance for a maximum of three months! If a boy or girl who is less than the age of 15 years by one day committed murder or distributed drugs, he or she would not be punished at all.

 

The Qur'an includes commandments and responsibilities for the children as soon as they reach puberty, no matter what age they are: (And when the children among you have attained to puberty, let them seek permission as those before them sought permission; thus does Allah make clear to you His revelations, and Allah is All-Knowing, Wise) ( An-Nur 24:59). The Qur'an made the criminal responsibility a personal one: (And We have made every human's actions to cling to his [or her] neck, and We will bring forth to him [or her] on the Day of Resurrection a book that he [or she] will find wide open: Read your book; your own self is sufficient as a reckoner against you this Day) (Al-Israa' 17:13–14). Child's Best Interest In the Islamic Charter for Children,Article 33 states that in all the measures related to children, whether those taken by legislative, judicial, or administrative agencies or those taken by public or private institutions of social care, the first priority is given to the parents, custodians, or any other people responsible for the children before the law.

 

The conviction of female genital mutilation in the amended law contradicts Islamic Shari`ah, which did not condemn such act. Dr. Yusuf Al-Qaradawi, one of the authors of the Islamic Charter for Children, said,

 

The Islamic jurisprudence and medical evidence agreed on the necessity of circumcision for only males, whereas there were different views concerning circumcision for females. They did not agree on its favorability, but they had different views concerning whether it is an obligatory, favorable, or honorable thing to do.

 

On the other side, Article 116 of the Islamic Charter for Children, which is echoedin the amended Children's Law, states:

 

Provided that any other law that states a more severe punishment is not violated, any person who performs or tries to perform circumcision for a female should be punished by imprisonment for not less than three months and not more than two years, or by a penalty that is not less than LE 1000 and not more than LE 5000.

 

Article 70 also states that a working mother cannot have a paid maternity leave (fully paid leave for three months after delivery). A mother is also not entitled to have maternity leave more than three times throughout the period of her service. This means preventing the mother from practicing a natural right that is given by Shari`ah. It is the right to have children; there is no reason for such a limitation, which is not in the best interest of the newborn child.

 

Dr. Abdul Lateef `Amer is professor of Shari`ah at the Faculty of Law, Zagazig University, Egypt. He is one of the authors of the Islamic Charter for Children. He said that Islam regards the family as the natural abode for children. It is where they are raised and nurtured with values and principles. If, for some circumstances, the family is unable to provide this, then the government and society should offer the solution and help the family overcome this obstacle. The government or society should not deprive the family from this right for the least equivocation subject to personal inclinations or misconceptions but not judged by equity and objectivity.      

Yahia Sa`ied Al-Qadi is an Egyptian lawyer in the Court of Cassation and the Supreme Constitutional Court. He said that adding powers to the National Council of Childhood and Motherhood that were not previously present in the decision of founding the council taken by the Egyptian president is considered a depredation of the judicial powers in favor of a consultative agency.

 

This is exactly what was questioned by the International Committee for Women and Children in its response to the reports submitted by Arab countries. The international committee had certain fears, among which is the system of care, including the age of marriage and age of criminal liability. Egypt's National Council for Motherhood and Childhood is a consultative agency that does not have judicial powers enabling it to question suspects and criminals.

In the amended law, child protection has become the right of the National Council for Motherhood and Childhood, which is supposed to be formulated under the National Council to have new powers like the right to ask for investigation, follow-up, and the power of judicial control.  

 

Today, Egyptian families look at the future with uncertainty when the changing laws bear some resemblance to UN charters and rights, and less the religious and cultural rights of the people affected.

 

Kamilila Helmy is the President of the Int'l Islamic Cmttee. for Women & Child, IICWC and the Co-ordinator for the Coalition of Islamic Organizations

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