The Parliament (Majlis) today resumes the debate on amending the Clemency Act to bring back capital punishment. Although the constitution allows the death penalty, the Maldives is abolitionist in practice.
The last time the Maldivian state put a person to death was in 1953. Depending on whether or not a majority of MPs agree to send the proposed amendment to the committee stages, today begins the process of reversing this tacit understanding of the death penalty as a form of cruel, degrading and inhuman punishment.
The amendment was proposed by MDP MP Ahmed Rasheed (Hoarafushi) after an urgent motion he introduced earlier in the Majlis session of March 8 to discuss the recent escalation of violent crime. It came on the foot of a savage altercation between members of rival gangs on March 4 in which three men were injured and a member of the public was forced at knife-point to hand over his motorcycle to one of the perpetrators. Blood was spilt in broad daylight, at the Artificial Beach, a public place frequented by families. Clearly, it is an issue that requires the immediate attention of the Majlis.
The debate that ensued, however, appeared to focus less on practical measures that can be taken to address the problem and more on finding a scapegoat with the meatiest political flesh for rival MPs to bite into.
Several MPs rushed to point the finger of blame at anyone else except the legislature itself: the security apparatus was acting with impunity in its refusal to be answerable to the Majlis; the criminal court was not doing its job properly; the president had been too lenient with members of the old regime who committed acts of torture and embezzled state funds; and the president had neglected to give due importance to the matter in his inaugural address of the Majlis on March 3, allegedly discouraging members from pursuing the matter with the required urgency.
People in glasshouses
“I was arrested on July 7 last year in allegations of planning to attack a politician with a sharp implement. They kicked in the door of my house. That was how it happened with me. But people who kill others on the street walk free,” Deputy Speaker of the Parliament and MP of the opposition-aligned People’s Alliance (PA) Ahmed Nazim said, joining the debate on March 8.
“And when I was under house arrest, confined within my own four walls, there were people throwing stones at my house, shattering the glass. They, too, are out there somewhere, walking free,” he continued. He was, Nazim said, “one of the few people in the Majlis with personal experience” of gang warfare and violent crime.
The ‘personal experience’ factor was significant in the debate. In addition to Nazim, MP ‘Reeko’ Moosa Manik (MDP) and independent MP Ahmed Amir, relayed similar narratives of up close and personal encounters with violent crime. “I, too, was imprisoned,” Moosa said.
Having made allegations of torture against former President Maumoon Abdul Gayoom, his proposed solution to the problem was to imprison Gayoom himself. “As long as Gayoom walks free, there will never be an end to this problem”. MP Amir relayed his own woes of being “hit in the back while an MP”, and updated the Majlis on the fact that nothing has been done since, leaving him with a feeling of diminished equality.
MP Ahmed Rasheed, had a similar personal narrative underlying his push for implementing the death penalty. Based on “one case in which I was personally involved in”, he generalised for the Majlis the woeful inadequacies of the current criminal justice system.
“The lawyers that the Prosecutor General send to the court to represent the state are usually young children, with no experience”, he said. “With an hour, half an hour or twenty minutes to go before the court sits, these children are handed hefty case files, and told: “Here, young lady, take the file”. They are, of course, trounced by the more experienced lawyers for the defendant”, he said.
MP Rasheed’s blatantly sexist hymn sheet was shared by Deputy Speaker Nazim, who also referred to the “young 18-19 year-old girls” who represent the Prosecutor General in court, and are allegedly posing a threat to national security. Neither MPs mentioned that the more educated members of the judiciary are to be found among the country’s youth and not among the ‘experienced judges’ most of whom have had very little legal training despite having been on the bench for long periods of time.
Putting the death penalty in an Islamic frame
The deeply personal nature of the Majlis’ debate on an issue of such national importance is extremely troubling. So too is the quality of the debate so far that has put the death penalty within the framework of Islam and Shar’ia. Very few MPs have displayed any knowledge of either the long and incessant international debate surrounding the death penalty, nor the rich Islamic jurisprudence on capital punishment. Nor did they demonstrate an understanding that the matter of gangs and rising crime cannot be solved by personal opinions but may need proper study and expert advice across the board on the criminal justice system.
One MP, Ahmed Saleem, for instance, declared all legislation as irrelevant and unnecessary given the completeness of the Qur’an. To clarify his claim, he presented MPs with a hypothetical scenario: “What if”, he said, “someone like Dr Shaheed [former Foreign Minister] were to say that there is nothing in the Qur’an on how to run a foreign ministry.” Such a claim can only be made out of ignorance, for the Qur’an does give guidance on foreign policy, he said.
“God created tribes, countries and states so as each can introduce themselves to the other… Had God made only one country, there would be no need for a Foreign Ministry.” Bang went the Treaty of Westphalia, centuries of diplomacy, and the concept of social constructs, all shot down to nothing with one sweeping statement.
Reducing the death penalty in Shari’a to mere advocacy to “kill the killer” is to reduce the rich and complex debate surrounding the death penalty in Shari’a to mere revenge. Such reductionism is a practice more often associated with those who criticise Islam from the outside than with those who speak in its praise from within.
Although all Muslims accept the permissibility of the death penalty because it is addressed in the Qur’an, its application is varied ranging from those who impose it to a short list of crimes to those who call for a moratorium on it altogether. Capital punishment in Islamic law, as reputed Islamic scholars have highlighted, has its own dhawabit (checks and balances). It is not imposed until due process has been observed, and all extenuating circumstances fully considered. Those who are calling for the death penalty ‘as per Sharia’ would also do well to remember, or to find out, that the state only has the power of execution – imposing it is not a power of the state.
Arguing against the death penalty in the United States from an Islamic perspective, Dr Azizah Y al-Hibri, professor at the T. C. Williams School of Law at Richmond University for example, has pointed out that in Shari’a it is the victim’s family alone that has the right to seek qisas (a form of retributive punishment) against the murderer. It is the majority view of Islamic scholars that if the victim’s family does not seek qisas in court, the state cannot do so on its initiative – unlike the common law system.
The state does have the power, however, to protect the public through other less retributive punishments such as confinement or exile: what the Maldivian state has opted to do for almost six decades. This restriction on the state is one of the most important – and relevant – aspects of the Shari’a to the current debate. It, or any other jurisprudence, has yet to be included in the discussions.
The importance of Shari’a’s restrictions on the state lies in the status of the judiciary as a branch of the state. Even in countries where the independence of the judiciary has been proven beyond reasonable doubt, restricting the power of the state to take away the life of its citizens is a crucial element of justice. When the state is authoritarian, when the judiciary is biased, or when other branches of the state exercise undue influence over the judiciary, it becomes essential for ensuring that life is not taken away arbitrarily.
Punishment without justice
Herein lies the crux of the matter. Questions over the independence of the Maldivian judiciary have now been at the forefront of public discourse for the better part of a year.
The International Commission of Jurists (ICJ) recently published the results of its fact-finding mission to the Maldives in September last year. The report found the Maldivian courts to be failing in their duty to serve the public impartially and laid a lion’s share of the responsibility on the Judicial Service Commission (JSC), charged with imposing and maintaining ethical and professional standards of the Maldivian judiciary.
The JSC has dismissed the ICJ report as “irresponsible” and the Constitutional stipulation to remove all unqualified and ethically questionable judges from the bench as “symbolic” with the result that a large number of the judiciary comprise of convicted felons and the morally dubious.
In 2010, the JSC received over 140 complaints against the judiciary, none of which have been investigated. Currently there a total of 115 complaints pending investigation at the JSC, accumulated from 2008 onwards till the present. Questions have been raised over the JSC’s fairness in its recent appointments to the High Court, and it is due to appear before the Supreme Court on the same issue.
Several other failures of the JSC have been equally blatant, but there appears no authority capable, or willing, to hold the JSC accountable. There is no agitation for reform or independence coming from within the law community itself. The Majlis, and its oversight committee supervising the conduct of independent commissions, is the only authority that can bring the JSC to account. So far, it has not done so in any meaningful way.
It should be noted, however, that at the end of last year, the Majlis committee did instigate an enquiry of sorts – one that raises more questions than answers them. The committee, whittled down from 11 to three members for unexplained reasons – all three of whom are lawyers – have been summoning individual JSC members for questioning. The matter raised in these enquiries, unusual both in the fact that it is summoning individual members to answer questions over the conduct of the Commission as a whole and in its closed nature, are secret and banned from media coverage. So far as is known, the enquiries have been of an administrative nature – who attended meetings when and such – rather than of an investigative nature probing the JSC’s refusal to carry out its constitutional duties.
The investigated and the investigators – where is the dividing line?
One of the characteristics of the debate on March 8, which brought the death penalty to the fore, was the determination of some MPs to blame the security forces of the country.
If only they were to be made answerable to the Majlis Oversight Committee on National Security, things would change, went the argument. Problem is, at the helm of the National Security Committee is Abdulla Yameen taken into ‘protective custody’ by the Maldives National Defence Forces (MNDF) in July 2010 and held on the island of Aarah, the Presidential Retreat, for nine days.
The police arrested Yameen on corruption charges earlier that month, but after about six hours in custody, the Criminal Court, in an extraordinary sitting held at midnight, ruled that Yameen should be released into ‘house arrest’. When supporters of the ruling Maldives Democratic Party (MDP) gathered outside his house, MNDF took him into what they called ‘protective custody’.
Yameen, claimed, however, that MNDF had detained him against his will. The Supreme Court found MNDF’s actions to have been in breach of the Constitution; the ICJ report was highly critical of the executive’s involvement in the actions. Currently Yameen is back at Court claiming millions of Rufiyaa in damages for his detention.
In the immediate aftermath of the debacle, the National Security Committee began to summon senior members of the MNDF and other members of the security apparatus before it. MDP MP Reeko Moosa Manik claimed the Committee’s actions were instigated as a form of revenge by Yameen against MNDF and called for his resignation from the Committee. It did not materialise.
In addition to the history of personal involvement between the security forces and Yameen, there is also the more recent spectre of allegations of corruption worth over US$800 million against Yameen published in various South Asian media outlets from India to Burma and the Maldives.
Yameen has denied the accusations, first published in Indian current affairs magazine, The Week on February 11, alleging that the scheme involved blackmarket oil deals between the State Trading Organisation (STO), when it was headed by Yameen, and the Burmese military junta.
More recently, the Democratic Voice of Burma, an independent Burmese news outlet, has connected the same oil-scam to the explosion of heroin in the Maldives in the early 2000s. The heroin addiction of a whole generation of Maldivian youth and its current problems with violence and drugs has been well documented, and its effects clear to see.
Even if the allegations are untrue, it is clearly in the public and national interest that any state figure of authority implicated in such serious offences, to declare a conflict of interest and distance themselves from holding sway over investigations with even the remotest of links to them personally.
There was no reference made to the personal history between Yameen, the president of the National Security Committee, when his fellow People’s Alliance (PA) party member, Deputy Speaker Nazim, so fervently proposed cooperation between the security forces as the solution to the country’s escalating problem of gang violence.
Own backyard
There are currently five bills crucial to the maintenance to law and order, security and crime reduction pending members’ attention at the Majlis. Chief among these, and pending the longest, is the Penal Code.
Submitted in October 2009, it has now been in the ‘committee stages’ for exactly 17 months to the day. Awaiting attention is also the Evidence Bill, submitted in just a month after the Penal Code, in November 2009.
The Narcotics Bill was submitted in March 2010, almost a year ago; and the Bill on Special Measures to Combat Crime was proposed a month later. Neither has passed the ‘committee stages’.
More recently submitted is the Jails and Parole Bill, pending since October last. Also awaiting Members’ deliberation is an amendment to the Police Act submitted in June 2010, and the Private Security Bill submitted the same month.
As a majority of the Majlis remains preoccupied with long recesses, extending their own privileges, boycotts and deadlocks, these vital pieces of legislation – without which even an unbiased judiciary would find it difficult to perform its duties – gathers to itself the dust of neglect.
MP Mohamed Musthafa, who proposed the Bill on Special Measures to Combat Crime in April 2010, accused members of the opposition of deliberately stalling its passage through the parliament. “If you push that Bill through, the credit will go to the government, there will be no advantage in that for us,” Musthafa said he was told by some opposition MPs. “Intoxication with politics is leading this country to its ruin,” he said.
As the issue opens up for debate at the Majlis again today, it remains to be seen whether any MP who calls for the imposition of the death penalty in order to fulfil its ‘Islamic duties’ refer to the manner in which the Qur’an urges the victim’s family to move forward and to forgive (Qur’an 2:178, 42:40) even as it provides for the right to demand qisas.
It also remains to be seen whether the same MPs would remind fellow members of the instances in which the Qur’an favours forgiveness over revenge or punishment and extols its virtues in many other contexts (Qur’an 42:40; 5:45; 2:237; 24:22; 2:109).
It will also be interesting to see, whether any of the debate calls on existing empirical evidence that reveals no direct link between capital punishment and deterrence of crime. Amnesty International has found, for example, that in the United States crime is lower in states where capital punishment is not practised compared to the states where it is.
Its conclusion was that: “The threat of execution at some future date is unlikely to enter the minds of those acting under the influence of drugs and/or alcohol, those who are in the grip of fear or rage, those who are panicking while committing another crime (such as a robbery), or those who suffer from mental illness or mental retardation and do not fully understand the gravity of their crime.”
Whatever the quality or outcome of the debate, the result will be a strong indicator as to how far the politicisation of life has travelled in the two years since the Maldives became a democracy. If it has come so far as to be able to impose its will beyond life to death, there is little hope that this government is capable, or willing, to resuscitate the increasingly moribund Maldivian democracy.
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