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Article in Penal Code that obstructs 'qisas' rescinded: Supreme Court

Mariyath Mohamed
01 December 2023, MVT 10:52
Supreme Court bench that passed Thursday's ruling.
Mariyath Mohamed
01 December 2023, MVT 10:52

The Supreme Court has ruled on Thursday to rescind the article in the Maldives Penal Code that obstructs the implementation of 'qisas' (retaliation in kind, legal retribution or retributive justice) as per Islamic Shariah.

The Supreme Court rescinded this article when deciding to uphold the High Court ruling of capital punishment for Mohamed Shaifan, the accused murderer of Ali Shifan (Tholhi Peley) ten years ago near West Park.

The four judge bench of the Supreme Court decided on Thursday to rescind Article 1204 (c.2) of the Maldives Penal Code.

The article states that inclusive of the statement of the defendant, if there is any level of contradiction between the evidence presented through a witness statement to a statement provided by any other witness, then it cannot be accepted that guilt or culpability has been proven to the sufficient level required by the law.

Judge HusnuSuood stated that it would be impossible to prove culpability to the level defined in the said article, and hence the article has been drafted in a manner that stipulates the court to do the impossible, thereby obstructing the implementation of qisas.

The Judge maintained that qisas is stipulated in the Quran itself, and therefore Maldivian law cannot be formed or interpreted in a manner that contradicts a direct provision in Islamic Shariah. He stated that any clauses or articles in any law that contravenes Islamic Law must be considered rescinded.

Judge HusnuSuood stated that scholars agree that in Islamic Shariah, it must be established that there is no 'Shubha' (doubt, obscurity) when proving a murder, and that there is no dissent on the matter. He said that Article 1204 (a) of the Penal Code describes the same, and that once that level is established in court, a guilty party can be sentenced to death.

As per the article, in order for a sentence of death penalty, the State must demonstrate all the determining factors of the crime. They must prove that the crime committed by the accused is more serious than other crimes, and provide physical evidence proving the accused's intent to commit the crime.

Judge HusnuSuood described Article 1204 (c.2) as posing additional conditions on passing a death sentence, appearing to inhibit the passing and implementation of capital punishment in the country. He thus proposed rescinding the article, supported by Judge Mahaz Ali and Judge Azmiralda Zahir.

Judge Aisha Shujoon opposed from the consensus.

Judge Shujoon maintained that the law clearly states in Article 1204 (c.2) that a death sentence cannot be passed upon a person in the instance that any evidence against them contradicts each other.

The Judge maintained that the death penalty directly related to the right to life guaranteed in the Constitution and that the noted article acted as added protection in cases of implementing death penalty upon persons. She said that the right to life can only be repealed through a law established by the legislative and that it cannot be interpreted in any other manner.

Shujoon stated that although Islamic Shariah directs to considering the level of guilt when passing a death sentence, if there is not enough evidence to prove guilt to the level stipulated in Article 1204 (c.2) of the Penal Code, then there exists a legal obstruction to passing the death sentence.

She held that Judges must refer to the Constitution and Laws when passing sentences, and that they must rely on Islamic Shariah only in the instance that a matter is not clearly defined in the Constitution or Laws. She added that the legislative held the absolute mandate to draft laws and that the courts must accept all laws ratified through them as valid.

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