Tag: sharia

The culture of flogging in the Maldives: a systematic abuse of human rights

The Maldives is a tourist paradise, crowned the World’s Most Romantic Destination during the World Travel Awards in 2011. But while a popular destination for couples around the globe, it takes a radical paradigm shift when it comes to its own citizens.

Under the 2008 Constitution the Maldives is a ‘100 percent’ Muslim country, with a justice system based on a hybrid of common law and Islamic Sharia.

Although the country does not implement many of the ‘Hadd’ or penalties prescribed by Sharia law, including amputation and stoning, it does practice some selective punishments.

One such penalty is the implementation of flogging for a number of crimes including, but not limited to, fornication outside of wedlock.

In recent days, global media attention has been drawn to the case of a 15 year old-girl convicted of fornication and sentenced to flogging, despite her history of alleged sexual abuse dating back to 2009.

Minivan News has spoken with a number of locals about their experiences with flogging, and the societal impact it has had in the past.

Faheem*, a 47 year old former court official in a small island in the North of the Maldives, shared his experiences in regard to related cases.

“In my 10 years serving as a court official during the 90’s, I have witnessed many people being subjected to public flogging. Although we are, in fact, a Muslim nation, most of these sentences were for cases of extra marital sex,” Faheem said.

“The majority of those who did get flogged were women. Although Islam specifically states that once a culprit has endured the ‘Hadd’ he or she is completely washed of their sins, society does not seem to see it in that way.

These women are tainted for life and forever looked down upon. There were a couple of men too, but the islanders did not react in the same way against the men. They seem to be more easily accepted back into society, their sins are generally forgiven or forgotten in time,” he explained.

“We usually used a paddle, and there were then, like now, specific regulations which the flogger had to adhere to. But there is one particular case that has stayed in my mind, and although I was not directly involved in it, I have always remembered it with a pang of guilt,” he continued.

“The magistrate at the time, Ghazee Zubair, was involved with a woman from our island. Then one day he had to preside over a case against this woman, who had been brought in front of him for charges of extramarital, consensual sex with yet another man,” Faheem said.

“I remember islanders talking about whether he would be impartial in his judgement. He was, to a point. Yes, she was sentenced to flogging. But, the appalling thing is that while all others got the paddle, she was given a hundred lashes with a cotton handkerchief,” Faheem said.

While the paddle is commonly used in the implementation of flogging, it has been replaced with less harsher tools in some cases.

Hussain Haleem, a former court official, said in the past there have been instances where objects such as peacock feathers have been imported for the sole purpose of flogging a woman belonging to the country’s elite, or a single lash with a string of 100 rosary beads, each bead counting as a separate lash. Haleem, however, added that there had been cases in the other extreme, where the flogger has used far more force than is required, causing serious physical harm to the person sentenced.

Court officials attempt to gather a crowd of onlookers when the sentence is being implemented, in a bid to increase the shame of the sentenced persons. People standing around the court building, or waiting to file documents or cases, are frequently asked to join the crowds.

Shame and humiliation

Ibrahim*, a 44 year-old civil servant, talked about growing up as the illegitimate child of a woman who had been flogged.

“It was hard. Mother, who has since passed away, did not come from as elite a family as the man who they say is my father. She was the youngest daughter of a carpenter, a woman with no education, no money and no social status,” he said.

“As a teenage girl, she worked as a maid to help support the family. It was at this house where she worked that I was conceived. Of course, the man involved was rich and well, untouchable, even by the justice system.He denied any involvement and got off scott-free.

“I don’t refer to him as my father. I have never exchanged a word with him. My mother, however, was lashed. She told me that she herself had confessed, saying as per Islam, she deserved to get shamed, to bebeaten for her sin. Her family was so ashamed of her that she was turned out of the house.

“She lived till her late fifties alone, except for me. Growing up with a woman labelled undeservingly as cheap and honourless was not easy. This place is small and everyone calls me a bastard behind my back. That is probably why I have never learned to smile much,” Ibrahim said.

Twenty-six year-old marketing professional Fathima* spoke about how she felt forced to marry a man she was unhappy being with, to avoid the “societal ostracism” of being flogged.

“I was 22 at the time. Hassan, my boyfriend, was 30. We had been in a relationship for about six months and it wasn’t really working out. Hassan was too possessive for comfort, and I was looking for a way out of the relationship. And then, in the middle of all this, I became pregnant,” Fathima said.

“There was no one I could go to with the problem. My parents would have been outraged and I did not, rather I do not, have the courage to take the chance of being found out and flogged; of being banished to some island and losing everything, from my family’s acceptance of me to my reputation and this job I love. So, although things were already sour, Hassan and I got married in a rush,” she continued.

Fathima gave birth to a baby girl less than seven months into the marriage. She said the couple had the baby abroad for fear of being found out if they had stayed in the Maldives for the delivery. After a difficult and emotionally abusive marriage, Fathima filed for divorce a year after the wedding. She does not get any support for the child from the father, and is currently working as a single mother.

“I sometimes wonder if, compared to the hardships I am facing now, it was worth it to spend all my savings on the wedding and the trip abroad for delivery of my child. Hassan was of no help except for the name he lent to my child. I ask myself if it wouldn’t have been better to have just faced the shame of flogging back then.

“Who am I kidding? I don’t think anyone deserves such degrading treatment. Let’s be real. It’s something that the authorities ignore until an official complaint is made or someone ends up getting pregnant, but there is hardly anyone in this country who does not have sexual relations prior to, or outside of, marriage. It’s the hypocrisy I hate worst of all,” she said.

Punishment or repentance?

Usthaz Abdul Mueed Hassan, a graduate of Qatar’s Mauhadini Sanawi and Azhar University, said that in its true spirit, Islam holds repentance and forgiveness in higher regard than the implementation of Hadd penalties.

Mueed, who holds a state-issued permit to lecture on religious issues, spoke to Minivan News about the implementation of Hadd, while also commenting on the case of the 15 year-old rape victim sentenced to flogging.

“There is a verse in the Quran which comes in light of an incident in Quraish. The people of Quraish used to sell or give out their young females to guests they held in high regard, against the wishes of these youth. The verse was in response to questions that arose as to whether these youth would be considered sinners,” Mueed explained.

He referred to the conclusion of Verse 33 of Noor Surah in the Quran which reads: “But force not your maids to prostitution when they desire chastity in order that ye may make a gain in the goods of this life. But if anyone compels them yet after such compulsion is Allah Oft-forgiving Most Merciful [to them].”

“In circumstances where a woman is forced into sexual relations, like in the instance of rape, Hadd will not apply to them. As in the verse I’ve quoted, Allah himself has forgiven them. None is above Allah. And since He has granted forgiveness, there is no more for us to do. It is very clearly stated so,” Mueed said.

“Anyone who reads these verses in the correct way and in their right order can clearly make out under what circumstances a punishment should and should not be given,” he said.

“Islam does not permit any Hadd to be delivered if there is any ‘Shubha’ [doubt] about the offence having been committed,” Mueed said, referring to sayings of Prophet Muhammad, as cited in the book Fiqh Al-Sunnah, Part II.

“The Prophet has also said that when seeking to implement Hadd on a person, if there is detected even the slightest reason to let it go without implementing the Hadd, then do so. He then says that this is because it is far better for the person in charge – be it a judge, a president or an Imam – to err in forgiving a person than to err in sentencing a person to any Hadd,” Mueed said.

“So even in the current case of the 15 year-old, if there is the slightest doubt – say for example, the girl is not fully mature and aware, or she is not explicitly aware that fornication is ‘haram’ (prohibited) – then it is better to not implement the sentence,” Mueed stated.

Mueed said that in Islam, proving offences like Zinah (fornication out of wedlock) beyond doubt is deliberately made to be difficult to achieve. Even if a person confesses to a crime, if he or she later denies it, then the Hadd cannot be observed, he said.

“For example, for this Hadd, there has to be four male witnesses with perfect eyesight who have seen the act occur at the same time, in the same manner. Four eyewitnesses being there is in itself unlikely, unless it is in a highly corrupted society and such acts are committed outside in public places. Furthermore, if three of them provide witness and the fourth ends up differing, then these three witnesses will be sentenced for ‘gazf’ (false accusation against a chaste and virtuous person of having committed fornication),” he continued.

“What is the reason for this to be made so complicated in Islam? It is to discourage implementation,” Mueed stated. “One must not take the literal, word by word, meaning of the Quran and Prophet’s sayings. We must interpret its words in the light of the true spirit of the religion and with reference to history.”

“For Hadd of Zinah to be sentenced upon a person, there are four requirements that must be met: the person must be of sound mind, must have reached puberty, must have committed fornication willingly without any compulsion and must know that the act of fornication is ‘haram’ in Islam,” he explained.

The religion-based political party Adhaalath Party, members of which largely dominate the Ministry of Islamic Affairs, has meanwhile stated that “No one has the right to criticise any penalties specified in Islam,” and that “criticising issues like this would encourage enemies of Islam, create confusion among the general public and open up opportunities for people who aim to stop the practice of similar penalties commanded in Islam.”

In a statement released in February, the party said “The purpose of penalties like these in Islamic Sharia is to maintain order in society and to save it from sinful acts. It is not at all an act of violence. We must turn a deaf ear to the international organisations which are calling to abolish these penalties, labeling them degrading and inhumane acts or torture.”

Corporal punishment is cruel, degrading, unacceptable: UN

Human Rights Advisor at the UN Country Office Safir Syed expressed concern over the implementation of flogging, especially in the case of minors, in the Maldives.

“It is unacceptable and against international standards. It is also important to keep in mind, apart from the physical trauma, the psychological effects the punishment may cause,” Syed said.

Stating that corporal punishment, including flogging, are explicitly prohibited under international law, Syed backed his statement citing from numerous UN standards and human rights mechanisms.

“While Article 7 of the ICCPR (International Covenant on Civil and Political Rights) states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, Article 37 of the Convention on the Rights of the Child add that ‘State Parties should ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age,'” Syed quoted.

Syed noted that in July 2012 the UN Human Rights Committee had called on the Maldivian state to “abolish flogging and explicitly prohibit corporal punishment in all institutional settings.”

Similarly, in 2007 the UN Committee on the Rights of the Child had expressed concern that corporal punishment is considered lawful as a sentence for crime and for disciplinary purposes, and called on the state to abolish the use of corporal punishment under such circumstances.

Syed also referred to the 2005 report of the UN Special Rapporteur on torture, on the legality of corporal punishment under international law.

“The Special Rapporteur stated that any form of corporal punishment, be it flogging, amputation, etc, is contrary to the prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The Rapporteur also said that States cannot hide behind domestic laws as justification for this violation of human rights obligations,” Syed said.

Meanwhile, an online petition by Avaaz.org calling on the Maldivian government to end the practice of flogging women and children for the crime of fornication has been signed by over a million people worldwide.

*Names changed at request

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State Minister for Home Affairs slams President Waheed over govt’s criticism of flogging sentence

Minister of State for Home Affairs Abdulla Mohamed has challenged President Mohamed Waheed Hassan Manik over his stated attempts to review the flogging sentence given to a 15 year-old rape victim by the Juvenile Court, for an unrelated case of fornication.

The criticism follows a tweet by President Waheed in which he stated that he would push to review the Juvenile Court’s sentence of 100 lashes and eight months’ house arrest against the minor.

Mohamed, who is also the Vice President of the Civil Society Coalition, told local media that it was “not acceptable” that the country’s president was making remarks against a penalty proscribed in Islam and called for Waheed to repent.

The case has attracted widespread criticism from the international community, with Amnesty International launching a petition demanding the government repeal the sentence.

The Maldivian government – which is currently vying for re-election to the UN Human Rights Council, launched its campaign in Geneva on February 28 on a platform of “women and children’s rights and the rights of persons with disability” – has expressed “deep concern” at the decision to prosecute the girl.

“Though the flogging will be deferred until the girl turns 18, the government believes she is the victim of sexual abuse and should be treated as such by the state and the society and therefore, her rights should be fully protected,” said the President’s Office in a statement.

“The government is of the view that the case merits appeal. The girl is under state care and the government will facilitate and supervise her appeal of the case, via the girl’s lawyer, to ensure that justice is done and her rights are protected,” the statement added.

State Minister Abdulla’s comments echo similar sentiments made by the religious-conservative Adhaalath Party (AP), which issued a statement declaring that the girl “deserves the punishment” under Islamic Sharia law.

Local media reported Mohamed as saying he intended to meet with President Waheed in order to ask him to publicly apologise for his comments.

Mohamed further stated that the girl – who had also been raped by her stepfather – should be punished for committing and confessing to the sin of fornication, and that this penalty must not be challenged, local media reported.

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Judicial statistics show 90 percent of those convicted for fornication are female

Almost 90 percent of the people found guilty of “Zina” – fornication – and sentenced to flogging in 2011 were female, according to new statistics published by the Department of Judicial Administration last week.

A total of 129 fornication cases were filed last year and 104 people sentenced, out of which 93 were female. This includes 10 underage girls (below 18), 79 women between age 18-40 and and four women above 40 years.

Of the 11 males who were sentenced, only one was a minor, with the others aged between 25-40.

Compared to 2010, the overall sentences in fornication increased by 23 percent in 2011, but the number of males sentenced for flogging decreased by 15 percent while the women increased by 30 percent.

According to Maldivian law, a person found guilty of fornication is subjected to 100 lashes and sentenced to one year of house arrest or banishment while a minor’s flogging is postponed until she or he reaches 18.

It takes four witnesses or a confession to prove the offence in court based on Islamic Sharia. The Maldives’ legal system consists of elements of both common law and Sharia.

Earlier this year, the Maldives made international headlines when a 16 year-old girl was sentenced to 100 lashes and eight months house arrest by Hulhudhufaaru Magistrate Court in Raa Atoll, for fornication while the 29 year-old man  was sentenced to 10 years imprisonment after finding him guilty of sexually abusing the girl.

Being a minor, the court stated that the girl’s sentence would be implemented when she turned 18.

After visiting the country in November last year, UN Human Rights Chief Navi Pillay called for a moratorium on corporal punishment, describing it as “inhumane and degrading.”

“This practice constitutes one of the most inhumane and degrading forms of violence against women, and should have no place in the legal framework of a democratic country,” said Pillay.

However, her statements and calls for discussion on the issue were met with outrage from the opposition and religious Adhaalath party, giving rise to protests and demonstrations. The Foreign Ministry itself dismissed the calls for discussion on the issue, stating: “There is nothing to debate about in a matter clearly stated in the religion of Islam. No one can argue with God.”

Minivan News could not verify if all the people sentenced last year had been flogged at the time of the report’s release, although former Former Minister of Gender and Family Aneesa Ahmed confirmed that the sentences were being carried out.

The Judicial Sector Statistics Report 2011 highlights the sheer scale of the long-known and unaddressed issues of gender bias in the justice system.

A 2004 UNICEF study titled “Gender issues in the Maldives Criminal Justice System” raised serious concerns over cases of ‘Zina’ – both consensual and non-consensual alike.

As rape was at the time and is still defined as “forced fornication”, as with any other fornication case, four witnesses or a confession is still required by the court to prove rape.

“In these cases a woman’s accusations need to be verified by two men or four women, thus, rape and sexual violence remain impossible to prove in virtually all cases,” the 2004 study noted.

The prosecutor general’s office had earlier confirmed that as these two necessary elements are almost impossible to find, in all rape cases the suspects are charged with forced sexual misconduct, which carries a lesser punishment.

However if the victim is a minor, the PG says that such cases are tried under the 2009 Act on Stipulating Strict Punishment for Child Abusers.

This is the major reason why no rape cases were found in the new statistics revealed by the judiciary despite the high number of reported rape cases. It is also likely that rapes involving minors have fallen into the category of child abuse while others have been categorised under forced sexual misconduct.

However, its also noteworthy that in 2010, eight men were convicted for forced sexual misconduct but the following year the sentenced decreased by 50 percent. Out of the men charged with forced sexual misconduct in 2011, six walked free while only four were sentenced.

The 2004 study further added at the time the current law establishes a minimum age limit of 18 for a person to receive adult punishments, but one of the three exceptions is “if the woman has had a child.”

The Judicial report 2011 says that 10 females were convicted for “giving birth outside a wedlock”, including a minor – a criminal offense which explicitly is directed at women and carries a sentence of maximum one to two years house arrest.

The UNICEF study explained that the current law allows for a young woman under the age of 18, who has been a victim of sexual abuse and is consequently pregnant, to receive lashings in a public setting.

“The victim must then endure the pain and public humiliation of her situation, both the illegitimate pregnancy and the public lashings, which have significant ramifications for her subsequent life opportunities. The perpetrator, on the other hand, is likely to remain publicly unidentified.” it noted.

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Comment: Sharia and the death penalty

This article first appeared on Dhivehisitee. Republished with permission.

On July 1, a Maldivian lawyer was brutally murdered, his body stuffed into a dustbin.

On June 4,  militant Islamists tried to murder Hilath Rasheed, the country’s only openly gay rights activist and a rare voice advocating secularism in the Maldives.

On 30 May,  a 65-year-old man was killed on the island of Manafaru by robbers after his pension fund.

On the same day, in Male’ a 16-year-old school boy was stabbed multiple times and left to bleed to death in a public park.

On April 1, a 33-year-old man was stabbed to death in broad daylight by two men on a motorbike.  On February 19, a twenty-one-year-old life was taken in a case of ‘mistaken identity’.

Amidst the increasing violence and decreasing value of life, calls for restoration of the death penalty are growing. It is normal for a society experiencing unprecedented levels of crime to demand the death penalty as a solution. In the Maldives, however, the whole debate is framed within the precincts of religion, touted as a return to ‘Islamic justice.’

This is not to say other ways of looking at it are completely absent from the discourse. There’s Hawwa Lubna’s examination of the death penalty within a rule of law framework in Minivan News, and Mohamed Visham’s somewhat confused and confusing analysis of its pros and cons in Haveeru, for example. Such discussions are, however, pushed to the fringes as the theme of ‘Islamic justice’ takes precedence.

My question is, how Islamic is this call for ‘Marah Maru’ [death for death]? Is revenge what underpins provisions for the death penalty in Sharia?

The Qur’an mandates that everyone has a right to life, unless a court of law demands killing: “Nor take life — which Allah has made sacred — except for just cause.”1

What is not being said in the Maldivian debates on the death penalty is that although the Qur’an provides for situations in which the death penalty can be imposed, all such situations are carefully laid out with stringent evidentiary requirements that discourage carrying out a death sentence.

And, in all situations where capital punishment can be imposed, it offers alternative punishments that allow the death penalty to be avoided. 2

Among the three types of crimes for which the death penalty can be imposed in Sharia–hudud, qisas, and the ta’zir– murder belongs to the Qisas category. Qisas are offences proscribed by the Qur’an or Sunnah, but are subject of personal claims, rather than offences against Islam. Qisas deals with murder or bodily injury. The Qur’an allows retaliation against the individual who commits a Qisas crime, but also clearly demonstrates a strong preference for forgiveness.3

We have often heard in the current Maldivian debate the call for an ‘eye for an eye’, a ‘life for life’, citing the Qur’an; what we do not hear is the rest of the verse.

We ordained therein for them:

“Life for life, eye for eye,

Nose for nose, ear for ear,

Tooth for tooth, and wounds

Equal for equal.”

But if Anyone remits the retaliation

By way of charity, it is

An act of atonement for himself.

And if any fail to judge

By (the light of) what Allah

Hath revealed, they are

(No better than) wrongdoers. 4

The law of equality

Is prescribed to you

In cases of murder:

The free for the free,

The Slave for the Slave,

The woman for the woman.

But if any remission

Is made by the brother

Of the slain, then grant

Any reasonable demand,

And compensate him

With handsome gratitude 5

The right for the family of a murder victim to demand harm is balanced by the opportunity for family members to accept payment, or diya, for their loss instead of demanding that the perpetrator be punished. This is reflected in the fact that, generally, the Qur’an expresses a preference for diya over qisas 6 It says, for instance, that the Muslim who chooses diya will be rewarded in heaven:

It is part of the Mercy

Of Allah that thou dost deal

Gently with them.

Wert thou severe

Or harsh-hearted,

They would have broken away

From about thee: so pass over

(Their faults), and ask

For (Allah’s) forgiveness

For them; and consult

Them in affairs (of moment).

Then, when thou hast

Taken a decision

Put thy trust in Allah.

For Allah loves those

Who put their trust (in Him) 7

The question is, when Sharia so emphasises forgiveness over punishment, why is the emphasis of the Maldivian death penalty debate on punishment over forgiveness? In the murder of lawyer Ahmed Najeeb, for instance, the breathtakingly rapid investigation and court case revealed that two members of Najeeb’s eight inheritors chose diya over death, preferring not to take a life for a life.

When, according to the Qur’an and Sunna, diya is the more honourable choice, why was the choice of these two relatives Najeeb not highlighted in the national discourse as motivated by ‘Islamic values’ and, therefore, praiseworthy?

Why is ‘truly Islamic’ justice only portrayed as ‘an eye for eye, a life for a life’?

Not only is the reluctance to punish found in the Qur’an, it is also the case in the Sunnah. A’isha, the wife of the Prophet said, for instance, to:

avoid condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favour of innocence…than in favour of guilt.8

There is another narrative from the Prophet’s life that demonstrates he actively encouraged his followers to ward off punishment by looking for uncertainties that would create reasonable doubt, making the punishment impossible.

Maa’iz b. Malik was a person who presented himself to the Prophet, confessing Zina and requesting purification with the hadd. His story is scattered through the books of Hadith in numerous narrations. The Prophet repeatedly told him to go back and seek Allah’s forgiveness. After he kept returning, the Prophet made a number of attempts to make sure there was no doubt. He sent his Companions to Maa’iz’s people to inquire if he was known to be insane. He was informed there was no evidence of insanity nor was was he known to have any defect in his mind. He then asked them whether he was intoxicated, and the Companions smelled his mouth and informed him that they could not detect any signs of alcohol on his breath. Only then did the Prophet implement the hadd of stoning. In additional narrations of this same story, the prophet asked Maa’iz some specific questions to avert possible doubt:

“Perhaps you only kissed her or flirted with her or gazed at her.” Maiz replied, “No”. He then asked, “Did you have physical intercourse with her?” He replied, “Yes,” and only then was he ordered to be stoned.9

Quite clearly, Islamic justice is based on the ethos of forgiveness rather than punishment.

This understanding of the Sharia is being left out of the Maldivian debate – as it was left out of much of Western discourse on Sharia in the last decade – by those calling for an end to the moratorium on the death penalty. It is a suspension that has lasted from 1953 till now, and one that more closely reflects the Quranic understanding of Sharia.

Given that all parties pushing the death penalty are framing it as re-introduction of an ‘Islamic justice’ system, it is wrong that they are all ignoring the emphasis that the system places on finding alternatives to taking a life for a life.

It raises the question of whether the real motives behind the call for the death penalty are political rather than a desire for justice itself, Islamic or otherwise.

Leading the call are the usual suspects – prominent legal players such as Attorney General Azima Shukoor, Prosecutor General Ahmed Muizz and Home Minister Mohamed Jameel Ahmed – who have all expressed their desire for restoration of the ‘Islamic justice’ of the death penalty. And the Chief Justice Ahmed Faiz has – incredibly – described the beleaguered Maldivian justice system as capable of meting out capital punishment justly.

For politicians, imposing the death penalty at a time of unprecedented violence such as now provides the opportunity for appearing tough on crime – always a vote-attracter among a population battling with rising crime rates, especially when a crucial election is nigh. Their assumption is that if the State were only brave enough to take upon itself the power to kill, everyone else would cease to do so.

Furthermore, it provides a rare and valuable opportunity to flex political muscle at a time when the government is weak and its legitimacy is in question.

For the Islamists, it is the means with which to enforce a particularly harsh interpretation of Sharia on the Maldivian people in the name of Islam.

Given the situation, it is shocking that no member of the community of ‘Islamic scholars’ in the Maldives have come forward to emphasise understandings of Sharia and Islamic jurisprudence that highlight forgiveness and mercy as virtues much more deserving of Allah’s approval than revenge – even where justified by law.

Does the lack of an alternative view mean that in the last decade or so Islamists have established such a hegemony over Maldivian religious thought that it prevents any other views from being offered to the public?

Does it mean there are no ‘Islamic scholars’ in the country with an understanding of Islam that is not Islamist?

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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ICC membership expected to reform Maldivian judicial system

The Maldives has become the 118th country to adopt the Rome Statute of the International Criminal Court (ICC), the world’s first and only permanent international court with jurisdiction over crimes against humanity, crimes of aggression, genocide and war crimes.

The Maldives is the third state in South Asia to become an ICC member, following Bangladesh and Afghanistan. It is the ninth in the south asian region alongside Cambodia, Japan, Republic of Korea, Mongolia, the Philippines and Timor-Leste; plans to ratify the statute are advancing in Malaysia and Nepal.

Asia has been slower than other regions in adopting the ICC regulations, allegedly because they maintain the death penalty which is prohibited by the ICC. William R. Pace, Convenor of the Coalition for the International Criminal Court, said the Maldives’ decision to accede to the Rome Statue was a significant step for the region.

“It is vital that the momentum towards increasing respect for the rule of law and accountability for those responsible for the most serious crimes is seized by other states in the Asia-Pacific region, many of whom are close to joining the ICC,” Pace said in a press release. “Joining the Court represents a strong deterrent effect that will contribute toward the prevention of gross human rights violations in the Asia-Pacific region and to the global fight against impunity.”

Acceding to ICC regulations as defined by the Rome Statute has been a long process for the Maldivian government. In 2003, the Maldives took steps to reject its judicial authority.

Wikileaks cables published on 1 September 2011 cite the Maldivian government’s intent to “never turn over a US national to the International Criminal Court (ICC). The Maldivian government would not sign the ICC treaty and would not respect its claim to universal jurisdiction.” Other cables indicate that then president Maumoon Abdul Gayoom was seeking approval for a visit with then US President George W. Bush, allegedly to improve his chances of re-election.

Speaking to Minivan News today, the President’s Press Secretary Mohamed Zuhair said ratification of the ICC statute highlighted the different values of the current administration.

“For us, it’s transparency that is at the top of our priorities. So right now, our highest priority is to improve the judicial system of this country.”

The ICC covers major crimes which are widespread, systemic and of concern to the international community. The ICC does not deal with small cases, even if the victims may be in the hundreds.

Among the criteria for the ICC to take on a case in the Maldives is doubtful willingness and capacity of the country’s own judiciary to handle the case in question.

Zuhair said it was important for Maldivians to have access to an international judicial system. “Individuals who feel they have a complaint, even against a leader, could refer the complaint to the Maldivian judicial system or to the ICC. This is a big step for a country whose previous leaders have been accused of human rights violations. I believe their cases would be fairly addressed in the ICC,” he said.

Evelyn Balais-Serrano, Asia-Pacific Coordinator for the ICC’s advocacy NGO Coalition for the International Criminal Court (CICC) told Minivan News that ratification would support domestic legal reform, and that heads of state would face new levels of accountability.

“The ICC only deals with the big fish. In the past only the small fish may have been sacrificed to show a semblance of justice – but the ICC targets the highest level of responsibility: the head of state, generals, kings,” she said previously.

The Debate

In October 2010, the debate to join the ICC created sparks in Parliament.

MDP MPs condemned the “unlawful and authoritarian” practices of the previous government. Group Leader “Reeko” Moosa Manik referred to 2009 legislation protecting former presidents who he considered “the worst torturers in the country’s history,” and said the purpose of the international criminal court was to “arrest torturers like Maumoon [Abdul Gayoom], people like Ilyas Ibrahim [brother-in-law of the former president] who stole state property and funds, and Attorney Generals like Hassan Saeed who tried to hide it.”

MPs from opposition Dhivehi Rayyithunge Party-People’s Alliance (DRP-PA) said MDP MPs were overlooking the fact that Gayoom had never been reprimanded in a court of law, and accused the current administration of disregarding rules of law. MP Dr Abdulla Mausoom accused the MDP government of formulating policies only to “benefit certain people”, which he argued could be “considered a crime in international courts.”

The question of religion was also inflammatory. DRP MP Dr Afrashim Ali said convention should not be signed if it could lead to “the construction of temples here under the name of religious freedom.” Other MPs pointed out that several Muslim countries had not joined the ICC, and the MPs were concerned that ratification would “shatter Islamic principles” and encourage gay rights.

Shari’a experts in ICC signatories and Muslim countries Afghanistan, Jordan and Malaysia have not found conflict between the Rome Statute and Sharia.

On 14 June this year, Parliament voted almost unanimously to sign the Rome Statute of the ICC.

The Effects

Speaking to Minivan News today, Balais-Serrano pointed out that ratification of the Rome Statute was well-timed.

“As a chair of the SAARC summit, Maldives will have quite an influence on south asian countries attending this year’s event,” she said. “It will certainly be constructive in reviewing human rights, a key point we plan to address at the summit.”

The South Asian Association for Regional Cooperation (SAARC) summit is scheduled for Addu City in mid-November this year.

Balais-Serrano also pointed out that by ratifying the Rome Statute, governments are committing to adapt current domestic legislation to meet international standards. She said ICC members could receive “training of local judges and prosecutors and other officials responsible for lawmaking and implementation”, and hoped the Maldives would forward with judicial reform.

“The judicial system in Maldives can benefit from the rules and procedures by which the ICC operates, for example, in the nomination and election of judges, in the protection of witnesses and victims and in ensuring due process,” said Balais-Serrano.

She said that ICC membership would expand Maldivian court procedures. “One of the motivations of joining the ICC is to let go of a commitment to include the domestic judicial system alone. Now, Maldivians can also refer to the ICC provisions and regulations. This is a timely event for the Maldives to review domestic law while making the ICC a reference point.”

As an ICC member, the Maldives will be able to send judges and lawyers abroad for internships and exchange programs in member countries. Balais-Serrano said that all member countries are obliged to send employees to the ICC to learn and assist with proceedings.

International liability

ICC membership could affect international relations. The Maldives recently made news headlines by supporting the Sri Lankan government, which is facing war crimes allegations by international human rights groups. A report from UN Secretary General Ban Ki-Moon has raised the likelihood of an investigation by the Human Rights Commission.

A Relationship Agreement between the ICC and the United Nations calls the UN “potentially the most important partner of the ICC on various levels,” and suggests that investigations by the UN are based on the same human rights standards put forth by the ICC.

“The Maldives cannot do anything if the ICC decides to investigate and put into trial the perpetrators of crimes in Sri Lanka,” said Balais-Serrano. “If suspected criminals from Sri Lanka seek refuge in the territory of the Maldives, as a state party to the ICC, the government is obliged to cooperate to the Court by arresting  the criminals.”

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Faculty of Sharia Law to expel student wearing face veil

The only student wearing the face veil studying at the Faculty of Sharia Law will be asked to remove it during class or face being expelled if she refuses to do so, Dean of the Faculty of Sharia Law Dr Ibrahim Zakariyya Moosa has reportedly stated.

An online religious news website in the Maldives, ‘Islaameenoor’, reported the girl as saying that she was called to go to the office after class, whereupon Dr Zakariyya told her that it was not compulsory for Muslim women to wear the face veil.

Dr Zakariyya reportedly told the girl that studying was compulsory under Islam, and that if wearing the face veil obstructed her from studying, she should not wear it even if it was a Sunnah.

According to Islaameenoor, the girl responded that she did not wear the veil to create confusion about the religion, but to uphold the religion as much as she could, the paper reported.

Dr Zakariyya allegedly told her that he had no choice to allow something disallowed, and that she should not come to study wearing the face veil although she was able to come wearing a loose black hijab.

According to the paper, Dr Zakariyya told her that in different parts of the country terrorists had used the hijab to hide weapons, and that there was “no way to identify the sex of a person wearing the full hijab”.

Dr Zakariyya explained to her that there was no way the faculty could confirm that it was really her attending the exam if she wore the face veil, to which the girl replied that if the faculty was suspicious, female staff working in the faculty could remove her face veil and check.

Dr Zakariyya then told the student that there was an opportunity to secretly have headphones in her ear while doing the exams, which she said was possible even wearing the normal veil without covering the face.

When Minivan News attempted to contact Dr Zakariyya, the front desk at the faculty referred Minivan News to the Maldives National University. The Maldives National University referred Minivan News back to the faculty of Islamic Studies, which said it did not have the authority to comment.

Maldives National University Chancellor, also the former Education Minister Dr Musthafa Luthfy, also said he did not wish to comment on the matter.

Former State Islamic Minister Sheikh Mohamed Shaheem Ali Saeed, currently Dean of Islamic Studies at Villa College, said he had not heard of the matter and would not comment on it unless the reports had been officially confirmed.

Online newspaper ‘Sun’ meanwhile today reported Dr Zakariyya as confirming that the reports were correct, and he had advised a student wearing the face veil to remove it while coming to study.

He reportedly told the paper that the Faculty of Sharia Law would “take strict measures” next year in such cases.

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Amana Takaful seeking to “kick start” Maldives stock market with landmark IPO

Sharia-compliant insurance company Amana Takaful will issue 800,000 shares in an initial public offering (IPO) on the Maldives Stock Exchange (MSE).

In a first for the country, 20 percent of the shares will be made available to expatriates and 15 percent to overseas applicants. The remaining 65 percent will be offered to Maldivians.

The Sri Lanka-based company hopes to generate Rf16 million (US$1.4 million) in proceeds through the IPO, by selling shares at a low issue price of Rf20 (bundled in packages of 25).

Amana Takaful’s board of directors announced the IPO on Monday afternoon at the Nasandhura Palace Hotel.

CEO of Amana Takaful Maldives, Hareez Sulaiman, said the IPO would “change the way the Maldivian Stock Exchange operates as this will be the first time that Maldivians, expatriates and foreigners will be able to purchase securities in a Maldivian listed company.”

The decision to price the shares low “at a price affordable to any average Maldivian” also promised to “be a kick starter for an active stock market which may benefit the entire economy at large,” the company said in an accompanying statement.

The company expects the Sharia-compliant nature of its business to be a key attraction in the market, it noted in its prospectus, with the “growing religious awareness within the domestic market further reinforcing [Amana Takaful Maldives’] decision to embark on expanding its shareholder base in the Maldives.”

Globally, Director of Amana Takaful Osman Kassim, also chairman of the first licensed Islamic bank in Sri Lanka, Amana Bank, explained that Islamic finance was “a phenomenon worth 1.4 trillion and growing at a rate of 20 percent annually.”

It functioned, he explained, through the prohibition of riba, or interest.

“Taking a return without participating in the risk of the return is not allowed, be it 1 percent or 99 percent. Any additional revenue is riba,” he said. “Even if you give a loan and he gives a gift, and is not in the habit of giving a gift, that is also riba.”

Islamic finance in its current form emerged 40 years ago, Kassim explained, first in Egypt and the Arab Emirates.

“It promises to be a just system. Interest is oppression – the charging of something where nothing is due,” he said, noting that in the wake of the global financial crisis, “All major banks now have Islamic financing products, and the more adventurous have their own Sharia Councils.”

Certain terminology used in Islamic finance was now routinely used in normal banking, he said, also observing a rise in financial offerings that were all but labelled Sharia-compliant.

In its IPO prospectus, the company predicted strong potential growth on the back of a higher disposable income as the rufiya eased against the dollar, brought on by a “significant” decrease in the cost of imports.

The key areas of the Maldivian economy – fishing and tourism – had shown strong growth, the company noted. Tourist arrivals grew 18 percent in 2010, while bed nights grew 13 percent even as capacity grew by almost 3000 beds to roughly 24,000.

Fishing was a key area of interest to the company given the high number of insurables. The industry had registered a slight decline in productivity in recent months, the prospectus noted, but nonetheless annual fish purchases had increased 29 percent and fish exports by volume had risen fourfold. Higher prices had led to 77 percent increase in monthly earnings.

The company has set a target of 30-40 percent growth in the Maldives, identifying a key market as the local, atoll and city councils following the government’s policy of decentralistion.

“Considering the current trends in religious conciousness, it is generally believed that the level of awareness and preference for investing in Sharia- compliant investments would be greater at the grassroots level,” the company noted.

It also indicated its intention to offer a micro-insurance product in the Maldives targeting the expatriate market.

The IPO will open on September 20 and close on October 19. The company has pegged a minimum subscription of Rf 2.4 million (US$156,000) or 15 percent to proceed with the IPO.

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Sharia-compliant resort announced for Maldives

Islamic hospitality firm Lootah Hotel Management (LHM) has announced plans to open a Sharia-compliant resort in the Maldives by 2013.

LHM, a division of the Dubai-based SS Lootah group of companies, signed and agreement with Maldives’ Kalaidhu Investment to construct the resort, a US$85 million project it says will include 50 luxury villas with private swimming pool and a private beach, restaurant, recreation centre, spa, marina and yachts among other amenities “to ensure the welfare and privacy of the families.”

In a statement CEO of Lootah Hotel Management, Nasser Lootah, said “the decision comes as part of the Group’s strategy to expand its footprint and customer base towards prestigious tourism destinations around the world.”

Lootah added that” Islamic hospitality is gaining popularity with those who prefer quality services provided in a calm atmosphere commensurate with family values.”

Abdulla Saeed, Managing Director, Kalaidhu Investment said, “We are pleased to be partnering with the pioneer of Islamic hospitality in the UAE. This offers a unique opportunity for us to work towards the development of universally recognised ‘Halal standards’ for Shari’ah-compliant hotels and resorts, to comply with and create similar guidelines for the benefit of the hospitality and tourism industry.”

LHM currently manages the Al Jawhara Group of Hotels & Apartments.

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Comment: Sharia punishments would be a sin given the current state of the judiciary

It is natural to want the Huddud (Laws of Qur’an and Sunnah) applied when one is experiencing so much death and tragedy as is happening in the Maldives.

But before the death penalty can be applied, the legal system must be absolutely objective. Unless there is a strong faith in the ability of the justice system, unless there is widespread faith that there are no incompetent judges or possibilities of bribery or subjectivity in the decision making procedure, it is a sin to implement Shariah Law which is a huge Amanah (trust) and MUST NOT BE TOYED WITH!

Before Maldives can implement Shariah, it MUST first establish widespread trust in the judiciary by through serious reform measures.

“O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.” [An-Nisa 4:35]

The law as we know it is believed by many to be a shocking betrayal of the Quran’s Amr (command) to ensure absolute objectivity. Adhaalath and Al-Qisas (social justice and equity for all) are a MUST before Hadd can be applied!

What if your children were put to death for a crime that was made up? False charges occur very frequently.

What if the drug dealers and corrupt ones who control court rooms in much of the world killed your son or daughter on charges of “terror” or manufactured charges of murder, zina or anything – but all your children really did was try to prevent the drug dealers from harming people? And were killed for that based on false charges made up that they committed zina?

As the Ummah is as one body, and one feels the pain of every other, I cannot but help fend for the potential victims of injustice under a system which sees the rich and powerful use the legal system to exterminate their enemies unjustly.

Think about all those who stood up against tyrants in world history, and imagine if they had of been killed by the State in the name of Islam even though they were fighting for True Islam which is Peace and Justice.

Real peace cannot exist in the absence of justice – how many crimes were manufactured against the activists of history?

It seems that in the system we have, to be a Muslim, which implies standing up for the downtrodden, sick and oppressed, is to sacrifice yourself. This is because truth suffers in this unjust world, but that suffering must be embraced for others if one is to be a person of true leadership, as a leader is called to be ‘a shield for others’ (in Sahih Muslim, Book of Government.)

In many societies, the real criminals walk away from the courts – and in fact control the courts, and that does not look like it can be changed!

So, the killers and the drug dealers will be killing the innocent and oppressed in the name of implementing Islamic Law. Does that sound like Islam to you? That is serious Fitnah (dissension) from Islam…

The Hukm (Law) is deeply sacred, it is a massive Amanah (trust) which must never be taken lightly or under estimated.

Allah is Al Quddus, the Holy, and every injustice is made right in the Qiyamat. Read the Hadith about what is in store in Jahannum for Muslim leaders who missapply the Shariah Law for political ends, or for the wrong Niyat.

A judge is to be held accountable for his motives, and it is a massive Zalim (darkness – injustice) to missapply the Shariah Law.

I do advise anyone wishing to implement the Law to be aware not to play politics with the Sacred Law.

On many occasions, the Prophet (SAW) did not implement the death penalty (Rajm) for certain Hadd level crimes although others frantically pushed for it to be implemented. This was because absolute objectivity could not always be guarenteed in the decision-making procedure.

For example, in the Hadiths of Bukhari and Muslim, as narrated through Sahih Isnad (a reliable chain of narration) we read about some Muslims killing other Muslims because they were ‘not Muslim…’

They said Shahada only at the edge of the sword, it was claimed. In response to the claim that their Shahada was not genuine, the Prophet (SAW) said, “Did you cut their hearts open to see the Niyat (the quality of intention) of their hearts?’

The point being, if there is any chance that there could be a mistake, then only Allah (SWT) can judge in the Qiyamath, the judgement which is in the Akhira – the afterlife. Unless absolute objectivity can be guaranteed, the Prophet did not implement or advise Hadd.

On other occasions, according to Sahih Isnad in Bukhari and Muslim, it was obvious that a child was not the child of the father who thought they were the father. For Malsahah (social utility) the Prophet (SAW) said the child belongs to whom’s bed on which it was born. It was not beneficial to prescribe Hadd though it was technically due.

The Merciful essence of Islam and the Islamic intent of social harmony, social justice, would be betrayed by Hadd in such circumstances although Hadd was technically due.

A Qadi must be a qualified Mujtahid and must investigate the issue extensively before making a decision. Notice the word Mujtahid, notice how this word for study and decision making about the Law requires Jihad – striving or struggle – as is contained in the word. If a Judge exhausts all avenues of possible doubt, only then will he be rewarded for decision making, and those doubts include ones own heart’s doubts!

Justice and truth must exist in the heart of the people before it can be applied to the courts and the system.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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