A draft penal code under consideration by parliamentary committee will “destroy Islam” in the Maldives if the bill is passed in its current form, Sheikh Ilyas Hussain of the Adhaalath Party (AP) repeatedly insisted at parliament today.
The chair of the religious conservative AP’s scholars’ council and member of the Fiqh Academy was summoned to the committee after claiming that the draft legislation (Dhivehi) did not include Shariah penalties for fornication, apostasy and violent robbery.
“If it is passed, there is no doubt that there will be no religion in this Muslim society that claims to be 100 percent Muslim. There will be no Islamic punishments,” Sheikh Ilyas stated in a sermon delivered at the Furqan mosque in Male’ on March 23.
Sections of an audio recording of the sermon were played at the committee meeting today.
Ilyas however stood by the assertion and pointed to the bill specifying two years banishment as the punishment for fornication, instead of public flogging as prescribed in the Quran.
“Refusing [to incorporate] a single Hadd [fixed punishments specifically mentioned in Quran] is destroying Islam,” he said.
Other hudud crimes include murder, theft, highway robbery, consuming alcohol, apostasy and defaming a chaste woman.
Responding to Ilyas’ allegations, MP Ahmed Hamza, chair of the committee, noted that the draft penal code specifies as offences zina (fornication), theft, alcohol consumption and illegally toppling the government.
Following tense exchanges between Ilyas and MPs in a question and answer session, Hamza however conceded that “some [hudud] punishments” were not included in the draft legislation.
Hamza explained that a provision (article 1205) was added by the committee after the draft penal code was opened for public comment, under which sentencing persons convicted for premarital sex to 100 lashes is left to the discretion of judges.
Hamza also observed that a high degree of certainty is required in Islamic Shariah to convict a person of a hudud crime, such as four witnesses to prove fornication.
The hudud punishments were not incorporated because the Maldivian judiciary does not have the competence and public confidence to deliver fair judgments, Hamza said.
“I believe that our justice system has not developed to the level of establishing hadd,” he said, adding that the Prophet’s (pbuh) sayings advised against meting such punishments if there was the slightest doubt.
The six-member select committee reviewing the revised penal code includes MPs Ahmed Hamza, Imthiyaz Fahmy and Nazim Rashad from the Maldivian Democratic Party (MDP), MPs Abdul Raheem Abdulla and Abdul Azeez Jamal Abubakur from the Progressive Party of Maldives (PPM) and MP Ahmed Mohamed (Vice Chair) from the Dhivehi Rayyithunge Party (DRP).
A revised penal code was submitted to parliament in late 2009 to replace the existing law put in place in the 1960s. The bill has since been at committee stage.
The initial draft of the penal code was prepared by legal expert Professor Paul H Robinson and the University of Pennsylvania Law School of the United States, upon the request of the Attorney General in January, 2006. The project was supported by the United Nations Development Program (UNDP).
Professor Robinson’s team have published two volumes (Volume 1 and Volume 2) consisting of commentaries on sections of the draft legislation.
“The author’s review suggests that the Maldivian criminal justice system systematically fails to do justice and regularly does injustice, that the reforms needed are wide-ranging, and that without dramatic change the system and its public reputation are likely to deteriorate further,” Professor Robinson wrote in his summary conclusion.
At today’s meeting, MDP MPs accused Ilyas of “lying” and misleading the public when he swore by God during his sermon that Shariah punishments were not included in the revised penal code.
MP Imthiyaz Fahmy said he deeply regretted Ilyas’ remarks in his sermon that implied that members of the committee were not Muslims.
“I am aware that I am a Muslim, not because of any relation between myself and Sheikh Ilyas,” Imthiyaz said. “I am a Muslim because of a connection from the bottom of my heart to God.”
Inciting religious hatred was a crime under both domestic and international law, he added.
DRP MP Ahmed Mohamed said that the first draft of the bill was in conflict with Islamic Shariah but the committee has made significant changes at the advice of religious scholars.
He went on to defend the committees’ efforts in reviewing the bill in consultation with state institutions, religious scholars, legal experts and the Islamic Ministry.
PPM MP Abdul Azeez Jamal Abubakur meanwhile asked Ilyas why he chose to make allegations in public and sow discord instead of sharing his concerns with the committee.
He stressed that the review process was ongoing with the input of experts and religious scholars.
“When you say this is a law intended to destroy Islam, what happens is that we face threats,” he said. “People who love religion even called us kafir (non-believers) at the time. So this is a dangerous matter.”
The PPM MP for Laamu Maavah also disputed Ilyas’ claim that the bill did not specify consensual sex between adults as an offence.
In response, Ilyas said it was his duty to inform the public after the committee invited views and comments as most people were not well-informed on religious issues.
Ilyas also objected to a provision (article 411) exempting a woman from being lashed even if she confesses to fornication, if the man denies it and four witnesses are not produced.
“This is definitely against Islamic Shariah,” Ilyas said, adding that a confession at court should lead to punishment.
Sheikh Ilyas argued that such provisions contravened the constitution as article 10 stated that no laws contrary to any tenet of Islam shall be enacted in the Maldives.