The government has appointed Aishath Bisham as Attorney General (AG) to replace Azima Shukoor, who has taken the role of Minister of Gender, Family and Human Rights to oversee legal reforms previously proposed by the government.
President’s Office Media Secretary Masood Imad confirmed that the government had decided to transfer Shukoor as part of commitments to potentially end the use of flogging as a punishment for sexual offences – a practice it previously alleged serves to punish victims of rape and abuse in some cases.
Bisham’s appointment as AG comes as an Avaaz.org petition calling for a moratorium on flogging and better laws to protect women and girls in the Maldives reached more than two million signatures – more than twice the number of tourists who visit the country each year.
The campaign stems from concerns over the Juvenile Court’s sentencing of a 15 year-old girl to be flogged after she confessed to authorities of having consensual sex with an unknown man during investigations into a separate case of abuse. The abuse was allegedly carried out by her stepfather.
Sources on Feydhoo in Shaviyani Atoll, where the 15 year-old girl originates from, last month told Minivan News that concerns had been raised by islanders since 2009 that the minor had allegedly been the victim of sexual abuse not just by her stepfather, but by a number of other unidentified men on the island.
During her time in the Attorney General (AG’s) Office, Azima Shukoor appealed the court’s decision regarding the minor’s sentence. Meanwhile, international pressure has continued to mount on the government to review the charges against the girl and push for reforms of how sexual offences are dealt with by the local court system.
President Dr Mohamed Waheed’s government has previously criticised the sentence, but warned this week that any form of boycott such as those proposed by Azaaz would serve to setback to the economic opportunities and rights we are all striving to uphold for women, girls and the hardworking Maldivian people in general.”
In a letter published on Minivan News on Saturday (April 6), Avaaz.org Executive Director Ricken Patel insisted that the organisation had not called for a outright tourism boycott.
“What we do stand ready to do, however, is to inform tourists about what action is and isn’t being taken by the Maldives government to resolve this issue and change the law, and to identify those MPs and resort owners who are using their influence to push for positive change – and those who are not,” Patel said.
“Around the world people are interested (and have a right to know) what kind of systems they’re supporting with their tourism dollars, and to make their holiday decisions accordingly,” he added.
Legal reform
The President’s Office has previously expressed hope that punishments such as flogging would be debated by relevant authorities to try and find an amicable solution to the problem.
The Maldives Constitution does not allow any law that contradicts the tenets of Islam, with the criminal charge of fornication outlined under Islamic Sharia.
However, President’s Office Spokesperson Masood previously noted that the Maldives had a tradition of turning away from practices such as the death sentence and various forms corporal punishment that form part of Sharia law.
He said that punishments such as removing the hand of a suspect in the case of theft had not been used since back in the 1960′s. Masood maintained that there was a history of reviewing the country’s relationship with Sharia law in the past and that a similar process could be had with the debate about flogging.
He concluded that all authorities involved in proposed legal reforms would have to tread “a very fine line” in order to tackle long standing “traditions” and beliefs in the country.
Avoiding prosecution
A senior legal expert with experience of working under both the present and former governments has told Minivan News that that while the Maldives Constitution requires that laws in the country do not contradict Islamic Sharia, there were ways of avoiding prosecuting suspects on charges of fornication.
“There are many Islamic legal interpretations that place several conditions to fulfill before a prosecution on fornication be brought forward. Some scholars even go further and argue that hudood offences cannot be practiced in the legal justice systems at the current time,” claimed the legal source, who spoke on condition of anonymity.
“Their argument is that Islamic Sharia is a way of life and you cannot pick and choose which areas you need to implement. Basically, you cannot implement Islamic criminal justice system in its original form when Islamic commercial system or Islamic governance is not observed.”
Despite his government’s stance on flogging, President Waheed’s Gaumee Ithihaad Party (GIP) has recently declared itself part of a coalition with the religious conservative Adhaalath Party (AP), which has publicly endorsed the 15 year-old’s flogging sentence, stating that she“deserves the punishment” as outlined under Islamic Sharia.
The Adhaalath party, members of which largely dominate the Maldives’ Ministry of Islamic Affairs, stated that the sentence of flogging had not been passed against the minor for being sexually abused by her stepfather, but rather for the consensual sex which she had confessed to having to authorities.
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- High Court appeal of 15 year-old rape victim’s sentence begins
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Quoted below is an essay by Prof Muhammad Hashim Kamali on google. I have quoted in full below (downloaded from http://www.iais.org.my/e/publications/articles/item/7-can-the-hudud-be-given-a-fresh-interpretation?.html)
Can the Hudud Be Given a Fresh Interpretation?
The issue I raise below is over the scriptural, as opposed to the juristic, understanding of the hudud, and what I am proposing is a revision of the whole concept from a Quranic perspective that reflect on the following four points.
Terminology
Let me say first that hudud (pl. of hadd – limits) in the sense strictly of penal sanctions do not occur in the Quran. ‘Hudud’are mentioned 14 times in the Holy Book, all in the sense, however, of limits of proper behavior that must be observed in a variety of contexts. Six of the 14 instances of hudud in the Quran occur in just one passage (2:229-30) in the context of marital relations and limits that the spouses must observe in the events of estrangement, separation and divorce. The punitive connotation of hudud can admittedly be subsumed under the concept of limits, as penalties are also markers and limits that separate acceptable behaviour from crime. But to reserve the hudud entirely for certain types of punishments is a juristic convention that does not originate in the Quran.
Number of Hudud offences
Hadd is defined as an offence for which a specified punishment is stipulated in the Quran or authentic hadith. The Quran stipulates such punishments for four offences, namely adultery, theft, slanderous accusation and highway robbery. Yet the fiqh (Islamic law) blueprint raises this number to six, thus adding wine drinking and apostasy(and according to some seven- adding mutiny). The text condemns these as heinous behaviour which must be avoided but provides no punishment for them. This is yet another point of divergence between the fiqh tradition and the more restrictive approach the Quran takes to punishments. Modern criminal law and jurisprudence also advise a restrictive approach to punishments.
Reformation and Repentance
The prevailing fiqh treats the hudud as fixed and mandatory punishments, which leave little room for rehabilitation and repentance, despite the fact that these are stipulated in the Quran. All that is needed is a proof of the offence which must then be followed by enforcement, thereby leaving no room for flexibility and discretion. Each of the four Quranic verses on hudud specifies a punishment, which is then followed, in every case, by a reference to repentance and reform: if the offender repents and reforms himself then God is truly forgiving and merciful. The clear text thus leaves the door open to leniency for those who have fallen into error and regretful, first time offenders, and those who show promise of correcting themselves. The rather harsh approach to punishment taken by the fiqh tradition also stands in a state of tension with the totality of Islam as a religion of compassion.
The four Quranic verses on hudud consist basically of two provisions each, one specifying the offence and its punishment, and the other that provides for reformation and repentance. There is no expatiation beyond these terms. The question that arises is that the fiqh blueprint on hudud has essentially ignored the latter portion of the text. Only the penalties were adopted but no provision was made to implement or contextualise the repentance (tawbah) and reformation (islah) aspects of the hudud. A structure of penalties, indeed a penal system, was thus envisaged that provide virtually no space for an educational and reformative exercise - presumably because of the shortcomings of the pre-modern system of criminal justice: To apply quantified punishments is a relatively facile task for courts and enforcement agencies than devising carefully nuanced procedures and approaches of the kind as are now known of probation orders, remand centres, community service, open prison, police attendance, suspended sentence and the like that are absent, even to this day, in most of the less affluent countries of the Muslim world. Only in the case of apostasy it is reported that the second caliph, Umar b al-Khattab, ordered the apostate to be given three days in which to repent, failing which the hadd is to be implemented. This obviously takes rather a mechanical view of repentance, which may well require an educational approach within a more flexible time frame.
Now if one were to review the whole theory of hudud from a strictly Quranic perspective, the hudud can no longer be seen as mandatory and fixed penalties. The Quranic penalties under review are admittedly quantified, which we can retain as such, but only in the sense of uppermost limits, the absolute maxima that can be reserved for the most heinous offences in the range. All other instances of hudud as quantified penalties will accordingly have to integrate the flexibility that is imbedded in the Qur’anic text. This will effectively relegate all these instances of hudud to the level of what is known as taazir in the sense of unquantified deterrent punishments. The judge would thus be authorised to order a suitable punishment while taking into consideration the attendant circumstances of each case. This is proposed to apply not only to cases where some level of doubt in the proof of hudud may arise and consequently relegate them to taazir, as is the position now, but even to cases of hudud that are free of such instances of doubt.
Exaggerated Beyond Merit
A substantive revision of the hudud is important, indeed necessary, not only for Malaysia but for the Muslim world generally - simply because of the difficulties encountered in their implementation. Muslim countries have generally shied away from the enforcement of hudud due to the severity of these penalties, yet because of public sensitivities they have not ventured to undertake a fresh interpretation of hudud. The problematic of hudud thus persist and made worse by Western media and human rights activists that have taken the hudud as a centre-piece of their anti- Islam propaganda. We know that Islam stands on its five pillars, and hudud is not one of them. Punishment of any kind is rather remote from the spiritual core of Islam, yet the general public has maintained a highly exaggerated perception of hudud as a litmus test and criterion of the Islamicity of their governments. The whole issue has been riddled with misunderstanding, exaggeration, and disillusionment. We need to take stock of the issues and also the needed initiative to actualise an integrated reading of the Quran on hudud and the Islamic penal system as a whole."
The majority of Maldivian readers will skip the above comment by Dr Shaheed and just go on raving and ranting about amputations and beheadings. They have no tolerance for nuance and no patience for reform. Such is the simplistic mind of the mullahs and their ilk. What else to expect from people who spent 3 years in Arabistan madrassas memorizing selected Islamist texts instead of critically-thinking and examining Islamic ideas as a whole?
These changes shouldn't just eliminate flogging as a punishment. It should eliminate any punishments for these kinds of non-crimes.
No victim, no economic damage, so social damage due to these non-crimes. End the Barbarism!
Dont be fooled. The only reason why Azima Shukoor has moved over to another ministry from her AG post is to receive legal fees from government for her consultancy in the GMR case. This is all just front. She has a history of "legally" taking undue advantage of the system and make a living out of exploiting government cases.