Parliament’s committee responsible for drafting the new penal code has slammed the “false preaching” of the Chair of Adhaalath Party’s Scholars Council Sheikh Ilyas Hussain over the bill.
In a sermon given on Friday evening at the Furugaan Mosque, under the title “Purpose of Islamic Sharia”, Sheikh Ilyas declared that the new penal code does not recognise fornication with mutual consent as an offence, said committee’s member MP Nazim Rashaad.
During the parliamentary committee’s meeting held on Tuesday, Thulhaadhoo Constituency MP rejected the claim stating that no such stipulation was included in the draft penal code.
Rashaad said that section 130 of the draft bill states that sexual intercourse with another person without consent is categorised as “rape” under the new bill.
The existing penal code does not explicitly recognise “rape” as a crime, and cases are handled under provisions for sexual offences.
Rashaad contended that whether sheikh or not, nobody could misinterpret the clause and claim that the bill did not recognise “mutually consented sexual intercourse” as an offence, and accused the Sheikh of lying to discredit the bill and parliament.
Briefing committee members on the sections concerning sexual offenses, Rashaad stated that under the draft penal code, both fornication and rape are offences under section 411 of the draft bill.
“These people are deliberately making misleading comments regarding the draft bill without doing proper research. They are attempting to discredit the bill and incite hatred among people towards the parliament and the members of this committee,” the opposition Maldivian Democratic Party (MDP) MP alleged.
Following Rashaad’s comments, Chair of the Committee MP Ahmed Hamza stated that the committee will look into the case.
The committee also decided to send a written request to local radio station Atoll Radio seeking recordings of the sermon which was broadcast.
Amendments to bill
The parliamentary committee’s decision follows its rejection of all but one amendment to the bill suggested by the Fiqh Academy of the Maldives.
Speaking to local media on Monday, Hamza said the committee had decided to accept only a suggestion concerning the offence of theft. Other amendments, he said, were merely changes to the wordings of the bill and carried little legal weight.
“They have submitted amendments to abolish certain sections. These include certain legal defences. When we looked into removing those defences, we found this impacted fundamental principles embedded to the draft penal code. So we decided to reject their suggestions,” he said.
Following the decision, Vice President of the Fiqh Academy Sheikh Iyas Abdul Latheef told local newspaper Haveeru that the academy had informed parliament that current draft penal code should not be enforced in the country.
Speaking of amendments proposed by the Fiqh Academy, Latheef claimed that the defence of intoxication included in the bill, if proven in court, could lead to the acquittal of a convict, but said the academy’s proposal to remove the defence had been rejected by the parliament.
“The current draft does not include the Hadds established under Islamic Sharia. There is no mention of the death penalty for murder, the punishment of stoning for fornication, the punishment of amputation for theft and the punishment for apostasy. We proposed amendments to include these punishments,” he said.
Iyas also echoed the remarks made by Sheikh Ilyas Hussain in which he too claimed that the current draft implied that fornication with mutual consent was not an offence.
He also added that the bill stating that a convict should be able to use voluntary intoxication as a defense conflicted with the rules and principles of Islamic Sharia.
Furthermore the vice president of the Fiqh Academy said the draft penal code bill was drafted in such a fashion that it would encourage criminals to commit crimes and disregard the principles behind punishments prescribed under Islamic Sharia.
Along with the Fiqh Academy, the religiously conservative Adhaalath Party has also sent a letter claiming that the bill as a whole contrasts with Article 10(b) of the Constitution which states: “No law contrary to any tenet of Islam shall be enacted in the Maldives.”
Responding to the criticism, Chair of the Committee Ahmed Hamza claimed that even though the committee had decided to reject the suggestions, amendments could be brought to the bill when the committee sends the bill to parliamentary floor.
US assistance with draft
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 bill.
In an interview given to Times Higher Education UK, Professor Robinson was quoted as stating that the draft bill strictly adhered to the principles of Islamic Sharia and Islamic law as the “law in the Maldives is based on Sharia”.
“The cultural norms are quite different,” He said. “What the Maldives will want to criminalise and the ranking of the seriousness of offences will be different in many ways (from the US system). They criminalise adultery, for example, whereas most American jurisdictions have dropped it.”
“Some of these provisions have symbolic religious significance more than practical importance. I’ve never actually heard of anybody who has more than one wife, though it may well be that there are some somewhere,” he was quoted saying.
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