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Islamic Constitutionalism in the Maldives: Islamness of the Maldivian Constitution and Laws

Shamsul Falaah
Edited By: Max Planck Institute

© Shamsul Falaah

I.  Historical Overview of the Maldivian Legal System

Religion has played an indispensable role in the governance and legal system of the Maldives since time immemorial. Customs, norms, constitutions and laws—both written and unwritten—denote the significance of religion, and the influence it has had on the shaping of Maldivian society and the political system. This Part1 presents a historical retrospective view and describes how the various legal cultures were entertained in the pre-constitutional era of the Maldives.

A.  Historical Retrospect

The pre-Islamic era of Maldivian history shows that Maldivians were nature-worshipers, and later came to embrace Hinduism and Buddhism.2 During this era, the legal system had Buddhist influences.3 After the embracement of Islam in 1153 A.C, fooruvve rudin, the customary law used in the pre-Islamic era, was replaced or mixed with Islamic law.4 Maldivians had followed the Mālikī school of law,5 however, after the reign of Portuguese, they started to follow the Shāfi‘ī school of law “tinged with Sufi traditions” and, since 1978, “Salafist Islam began to creep into the political agenda.”6 Today, Maldives is a 100% Muslim country, with a population of around 341,256. Though there are elements of Salafists, Maldivians predominantly follow the Shāfi‘ī school of law.

Throughout history, the Maldives had its “own system of rule, which seemed to have been suitable to the geographical setting of this unique archipelago,”7 with “time honoured customs and traditions” 8 following the king, the supreme, as a father-figure.9 One author claims that Maldivians have been living under a legal system for over two millennia.10

The country saw landmark changes in the political system in 1932; these replaced the unwritten constitution11 with the promulgation of the first written Constitution, I call this the “constitutional revolution” and the “birth certificate” of constitutionalism and fundamental rights and freedoms in the Maldives.12 This happened to be the first ever written constitution in South Asia.13 Since the birth of the Constitution, until the democratic revolution of 2008, the country saw several amendments to the constitutions and abolitions and adoption of several new constitutions. With all these changes in the life of the constitutionalism, the legal system is believed to be an admixture of English Common Law and the principles of traditional Islamic law.14

The First Constitution of the Maldives was the first step in a long journey for democracy. Through this Constitution, the Maldives transformed the country’s government to a constitutional monarchy earlier than their South Asian neighbours did.

After several adoptions of new constitutions and amendments, the country embraced a republican constitution in 1952 after a public referendum which transformed the country’s long-practiced Sultanate into a Republic.15 However, this also did not survive for long. A new constitution reinstating the Sultanate was adopted in 1954 and lasted for over a decade.16 In 1968, a new constitution was adopted to go back to being a republic; this resolution was adopted based on a public referendum. Since then, republicanism has been practiced in the Maldives despite the adoption of new constitutions in 1998 and 2008.

B.  Legal Cultures in the Pre-Constitutional Era

The history of this era shows how the two different legal cultures co-existed without ignoring customary law, even after the introduction of Islamic law in the ancient Maldivian legal system. However, there is evidence that the Islamic law was granted precedence over customs. In this regard, there were instances where there were attempts at sidestepping customary law and applying the Islamic Shariah, and the abolishment of customs and practices that are contrary to Islamic Shariah.17 Ibn Battuta, a Morrocan traveller who was appointed as the Chief Justice of the Maldives by the then Queen, of the Maldives, wrote:

“When I was appointed, I strove my utmost to establish the Sacred Law. There are no lawsuits there like those in our land. The first bad custom I changed was the practice of divorced wives staying in the houses of their former husbands, for they all do so till they marry another husband.”18

It is also evident that Ibn Batutta attempted to enforce Shariah by imposing punishments for non-observance of prayers and obligated women to cover their body when they appear in lawsuits before him.

Judges during Ibn Battuta’s time in the Maldives enjoyed two functions: propagating Islam; and the adjudication of lawsuits. For example, judges hear legal disputes at their residences except in special cases where the proceedings are held at Kiyevenibeykalunge Ashi (Scholars’ Bench), and during the month of Ramadan, judges deliver religious sermons.19 Later, Francois Pyrard de Laval’s writings suggest that there was a Katib in every inhabited island who acted as the superior religious leader of the island—in addition to his responsibility for governing the island and instructing the people about the law—taking charge of the Mudims (singular: Mudim, imams of the mosques who lead the congregation) has an extraneous duty to instruct the people about the law apart from the religious duties.20 The Katibs are under the Naib who has responsibility for the function of administering justice, governing the atoll as the head of the province with authority in religious matters.21

Further evidence which suggests that the legal system was not solely based on Shariah Law but also on customs is the practice in regard to witnesses. Pyrard writes that the parties to a dispute can bring three witnesses, and if there are no witnesses to a case, then the defendant is required to take an oath:

which he takes by touching with his hand on the book of their law (Quran), the judge presenting it: and the plaintiff if he be at all a man of the world, scrupulously observes whether his opponent really touches the book, and at the proper place.22

These writings also suggest that the Shariah offences and punishments were not fully implemented during the pre-constitutional era, despite the implementation of certain Shariah punishments. Pyrard writes that the punishment for religious offences was ganhingun (pillorying around the island), and for greater crimes, such as sodomy, incest, and adultery, flogging was imposed.23 It was during this time that amputation was implemented as a punishment for theft and which has been the subject of a moratorium until the present day.24

This proves that Islamic Shariah was partially-implemented during the pre-constitutional era and in certain matters, it had superiority over custom. Nevertheless, these writings also suggest that Shariah punishments were not imposed on all the partially-implemented Shariah offences.

II.  Influence of Islam on the First Constitution and Thereafter Until the Current Constitution

It is evident that ever since the First Constitution; Islam has had significant status in the Maldivian constitutionalism. This Part of the paper discusses how the Islamisation of constitution and laws in the Maldives have survived until the current constitution. This entails identifying how the Islamic constitutional ideas migrated to the Maldivian constitutionalism and laws.

A.  Islamisation of Constitutions

The decree of the then King, King Mohamed Shamsuddin, to form the Constituent Assembly to frame the first constitution of the Maldives ordered the Constituent Assembly to make the constitution and laws in a manner that is not contrary to the religion of Islam25 as, among other fundamental considerations, this should be considered in the constitution-making. The following are significant references to Islam, or matters relevant to the religion of Islam, in the Maldivian constitutionalism until the current constitution:

  1. i.  Mohamed Ameen, a member of the first Constituent Assembly, argued that the ‘British Constitution’ and the ‘Egyptian Constitution’26 were considered to form the foundation of the First Constitution of the Maldives.27 He does not suggest that the constitutions or constitutionalism of these countries were considered as the sources of the constitutional drafting. It should be noted that there are some similarities between the First Constitution and the Egyptian Constitution of 1930, most notably in the Bill of Rights (BOR).

  2. ii.  Since this very first constitution, until today,28 Islam has been kept as the religion of the state.29 This inclusion could have been inspired by what was the Egyptian constitution30 of the time, since the Egyptian constitution was considered as an example in the drafting process as suggested by Mohamed Ameen. Since the first constitution of Egypt, it has been stated that: “Islam is the religion of the State and Arabic is its official language.”31

  3. iii.  The First Constitution of the Maldives entrenched the Bill of Rights (BOR) without a blanket limitation based on Islam or Islamic Shariah.32 Internal limitations were placed subject to law, and in one instance subject to both law and ethics.33 However, including this limitation on the right to education and to educate,34since the First Amendment to the First Constitution limited the rights of not to be arbitrarily detained or arrested,35 no punishment without law36 and freedom of expression37 to be consistent with both law and Shariah. And the Second Amendment to the First Constitution limited the freedom of assembly to be within the bounds of both law and Shariah.38

  4. iv.  The Bill of Rights, since the First Constitution, begins with the right to equality before the law. However, the Second Amendment to the First Constitution reframed the provision that guarantees the right to equality by adding that Maldivians must comply with the law, and both law and Shariah can be imposed upon the Maldivians,39 which remained in the subsequent constitutions until the Constitution of 1954.

  5. v.  Since the First Constitution, the clause that obligates every citizen to learn to recite Quran and to read and write in Arabic, remained until the Constitution of 1997 except in the ‘Little Constitution’ of 1951. The Second Amendment to the Constitution of 1954 (1967) included this clause with a slight difference of adding the obligation of learning the affairs of Islam to the required level as established in the Compulsory Education Act.40

  6. vi.  The oath of the ministers and the King states that they should respect the religion of Islam. This has been established since the First Constitution until today.

  7. vii.  The doctrine of the supremacy of the constitution, or the repugnancy clause, has appeared ever since the First Constitution, with the exception of in the Little Constitution. However, the repugnancy clause is different in the current constitution which limits the law-making power in contrary to the tenets of Islam.

  8. viii.  The King can be dethroned if he is convicted of an offence for which a hadd is prescribed in Islam.

  9. ix.  The King and the members of the Legislative Assembly must be Muslim and followers of a Sunni school of Islam.

  10. x.  To be eligible to vote, a person must know how to write in Arabic.

  11. xi.  The King’s governance powers are limited within the bounds of Shariah and law.41

  12. xii.  Since the First Constitution, the King must be a Muslim and a follower of the Sunni school of Islam, with the exception of during the Little Constitution. Later this requirement was established for the ministers and other public offices.

  13. xiii.  The First Constitution established the jury system to adjudicate in cases of violent crime which had the punishments of banishment and the death penalty.42 This system was removed in subsequent constitutions.

  14. xiv.  The First Amendment to the First Constitution bestowed the power of governing matters of religion on the King.43

  15. xv.  The First Amendment to the First Constitution also constituted the office of Fan’diyaarubeykalaku (intended to be the Chief Justice) who had the functions of propagating the tenets of Islam, administering justice, the implementation of hadd and ta’zir, and overseeing the functions pertaining to the judiciary.44 This suggests that the judge was entrusted with quasi- judicial functions. This Constitution also required that the Chief Justice be a scholar of high distinction among the scholars of the Shāfi‘ī School.45

  16. xvi.  The Constitution of 1953 (Third Constitution) was drafted after a public referendum that supported a republic over constitutional monarchy. This Constitution also established a bicameral parliament made up of the Senate and the People’s House.46 The republican movement, or Senate system, which was an entirely new system to become established within this Maldivian constitution, could have been inspired by the Egyptian Constitution of 1952 which was promulgated after the revolution that transformed the country’s system from a monarchy to a parliamentary representative system.

  17. xvii.  The Constitution of 1997 defines the State as ‘a sovereign, independent, democratic republic based on the principles of Islam, and shall be a unitary State. …’ This was the first time that a Maldivian constitution had stated that the Maldives was a State based on ‘the principles of Islam.’ The term ‘principles’ is ambiguous since the constitution is silent on what it is meant by ‘the principles of Islam.’

  18. xviii.  Until the Constitution of 1997, none of the Maldivian constitutions had defined law. However, in the Constitution of 1997, the term ‘law’ was defined to include ‘the norms and provisions of Shari’ah established by the Noble Quran and the traditions of the Noble Prophet, and the rules derived therefrom.’

B.  Islamisation of Laws

This section discusses how Islamic clauses were incorporated into the laws of the Maldives after the First Constitution and until the current Constitution.

  1. i.  After the First Constitution, the Public Administration Act of 1932 required judges to seek approval from the Minister of Justice prior to deliberating on cases of crimes such as murder, rajam, faskh, lian, hajr and iflas.47 This suggests that, Islamic Shariah rulings on family law and criminal law were codified by this law. Later, these rules were codified in the Trial Proceedings Regulation of 200348 and the Family Law Act of 2001 and the regulation formulated under the Family Law Act.

  2. ii.  In 1950, Mohamed Amin started to implement the hudud punishments pertaining to Shariah law. Following this decision, on 7 April 1953, the Maldives pronounced its first ever death penalty and on 1 July 1953, the punishment of amputation was delivered.49

  3. iii.  The Maldivian Penal Code of 1961 codified several Shariah offences. Article 15 of the Penal Code stated that ‘except where a Hadd, punishment is prescribed in Islamic Shari’ah, every offence mentioned in this Act shall be punishable with the punishment provided in this Law.’50 Moreover, it states that it is also an offence to disobey an order issued lawfully within Shariah or Law.51 However, the clause which defines an offence does not explicitly include Shariah offences and states that an offence means ‘the commission or omission of an act for which there is a punishment provided by Law.’52

  4. iv.  The Maldivian law on testimony, the Anhenunge Heki Bahuge Qaanoonu53 (Testimony of Women’s Act) and the Hekkaa behey Qaanoonu54 (Evidence Act) the witness of men and women is equal where those matters are established in the Quran. Moreover, Article 56 of the Trial Proceedings Regulation (2003), further details of the matters established by the Quran:

    1. (1)  zinā (fornication and adultery); (2) Marriage, Reconciliation of Marriage, Divorce and Will (3) Disputes relating to Property.

III.  Current Constitutional Structure of the State

The current Constitution, which resulted in a democratic revolution, has culminated in numerous revolutionary changes to the constitutional and political systems of the country. According to the Constitution, the Maldives is a “sovereign, independent, democratic Republic based on the principles of Islam, and is a unitary State, to be known as the Republic of the Maldives.”55 It is a trend in the constitutions of some Muslim-majority countries to define the State as an Islamic State, or Islam, as a foundational value of the State. For example, the constitutions of Iran,56 Pakistan57 and Afghanistan58 states that they are “Islamic Republics.” The constitution of Bahrain declares Bahrain to be an “Islamic Arab State.”59 However, none of the constitutions of the Muslim-majority countries declare that the State was founded on the principles of Islam as is stated in the Maldivian constitution. The closest similarity is to be found in the constitution of Pakistan where it was declared that the country is “based on Islamic principles of social justice.”60

Promoting the doctrine of popular sovereignty for the purpose of achieving the goals of the Constitution, the Maldivian form of government is a hybrid of features of presidential and parliamentary established under the doctrine of separation of powers to three branches of the government: (1) the executive;61 (2) the legislature;62 (3) the judiciary.63

A.  Sources of the Maldivian Law

Though the Maldivian legal system is largely based on the Islamic Shariah and common law, contemporary Maldivian law, especially in case of commercial and public law, is a hybrid-product of the influences of common law and foreign and international legal norms. This is evident from the several instances in which the Majlis and the courts have borrowed constitutional and legal norms from other jurisdictions. The sources of the Maldivian law include the religion of Islam, its Constitution, statues, Islamic Shariah, secondary legislation, case laws, general principles of law and other resources, such as the intrinsic and extrinsic aids used in the interpretation of statues.

According to Article 10 (a) of the Constitution, Islam is one of the primary sources of Maldivian law.64 Otherwise, the Constitution does not expressly state any source as its source of law. The closest inference to this end is the Constitutional provision which protects the independence of the judges and obliges them to comply with only the Constitution and the law, and if they are silent then to resort to Islamic Shariah.

Article 142 of the Constitution states:

The Judges are independent, and subject only to the Constitution and the law. When deciding matters on which the Constitution or the law is silent, Judges must consider Islamic Shariah. In the performance of their judicial functions, Judges must apply the Constitution and the law impartially and without fear, favour or prejudice.

By implication, this suggests that the Constitution, statutes and Islamic Shariah are also sources of Maldivian law.

Section 3 of the Maldivian Judicature Act of 2010 also states the sources to which judges must adhere when deciding cases, however, it does not specify whether Islamic Shariah can be relied on if the Constitution and laws are silent:

All matters adjudicated before the courts of the Maldives shall be decided upon in accordance with the Constitution, the laws and the Islamic Shariah.

As is the case with many other national constitutions, the Maldivian Constitution also reflects several sources, including some of the legal and constitutional traditions that existed in the pre-democratic Maldives.

1.  Islamic Shariah as a Source of Law

Under the current Constitution, law is defined as ‘those statutes enacted by the People’s Majlis and assented to by the President, and those regulations which are authorized by, and which fall within the ambit of, those statutes.’65 Unlike the previous Constitution, the current Constitution does not include Islamic Shariah within the scope of law in the definition of law. However, there is no doubt that Islamic Shariah is a source of Maldivian law as per the Article 142 of the Constitution. However, there are two implications that can be drawn from this article. Firstly, in addition to the religion of Islam, the primary sources of the Maldivian law are the constitution and the statutes. Secondly, Islamic Shariah is a secondary source—a complementary source only to be considered in cases where the constitution and the law are silent.66

In comparison, when this Article is interpreted with the repugnancy clauses67 in the Constitution and the definition given for “tenets of Islam” in the Constitution, it could be contended that a law can be made against a principle or rule of Islamic Shariah, which manifests that Islamic Shariah is not the supreme source or law of the land.

According to the Constitution, ‘tenets of Islam’ means:

those principles of Shariah whose provenance is not in dispute from among those found in the Holy Quran and Sunnah of the Noble Prophet, and those principles deriving from these two sources.68

And, ‘Islamic Shariah’ is defined as:

the ways preferred by the ahl-sunnah wa al-jamā‘a in relation to criminal, civil, personal and other matters found in the Holy Quran and Sunnah.69

Suood argues that Article 142 of the Constitution establishes the “order of priority” of the sources of Maldivian law, and that the legislature’s law-making must not be against the “tenets of Shariah.”70 This conclusion is questionable for the following reasons:

  1. i.  The Constitution nowhere states “the tenets of Shariah”, it only states “the tenets of Islam.”71

  2. ii.  The Constitution’s source of law clause, which states that Islam is one of the sources of Maldivian law, indicates that Islam is not the only primary source, but a primary source, and that there are other primary sources of law. Therefore, even though Article 142 of the Constitution sets the hierarchy of the sources of Maldivian law as Suood argues; however, that hierarchy is not exhaustive since Islam is set out as one of the primary sources of all the laws.

  3. iii.  Moreover, since the Constitution gives two distinct definitions for “the tenets of Islam” and “Islamic Shariah,” any contention that no law can be made against the tenets of Shariah is unsupported.

Considering the definition of the tenets of Islam which includes part of Islamic Shariah (those Shariah principles in Quran and Sunnah whose provenance is not in dispute), on these grounds, one might argue that the compliancy of the laws with the tenets of Islam, which is a mandatory requirement, and any law passed by the Majlis shall be compatible with the tenets of Islam; by virtue of this, the consideration of the constitution and law as primary sources is an indirect acceptance of Islamic Shariah as a primary source.

However, again, one should contemplate the difference between “Islamic Shariah” and “the tenets of Islam” in the constitution.

For these reasons, it could be concluded that the argument that Islamic Shariah is a secondary source has a stronger basis than the arguments against it; Islamic Shariah is a source of Maldivian law, but it is highly debatable whether it is a primary or a secondary source. And it is unquestionable that Islam is a primary source of Maldivian law.

Where Islamic Shariah becomes a source of law, it suggests that it also acknowledges the sources of Islamic Shariah: the Quran and Sunnah as primary sources, where the Quran is the supreme; and Ijmāʿ and Qiyās are secondary sources.72

IV.  How Theocratic is the Maldivian Constitution?

In the previous section, the status of the tenets of Islam, Islamic Shariah, and Islam as a source of law were discussed, giving an account of the hierarchy of the sources of Maldivian law. Since it is widely accepted that the theocratic provisions of different Islamic constitutions do not all have the same effect, therefore, it would be unwise to abandon a discussion of identifying the degree of theocracy of the Maldivian constitution.

According to Suood, theocratic character lies at the heart of the Constitution and “upholding Islam is a central feature of the Constitution,”73 while for Dawood I Ahmed and Tom Ginsburg, the Maldivian constitution is the latest Muslim state to adopt Constitutional Islamisation.74 In another research, the Maldives are ranked 3rd out of 56 countries based on degree of Islamicity.75

It is undoubtedly true that the Constitution gives great importance to Islam, as mentioned previously. However, to understand how the Constitution in its entirety is theocratised, it is important to highlight all the Islamic clauses in the Constitution which are not mentioned in the previous sections. These provisions include:

  1. i.  Islam is the religion of the State.76

  2. ii.  All fundamental freedoms and rights in the BOR are guaranteed subject to the tenets of Islam.77

  3. iii.  The Constitution has repugnancy clauses in the Articles 10(b) and 70(2)(b), (c) which limit the law-making power subject to the tenets of Islam which means that no law can be made in contrary to the tenets of Islam.

  4. iv.  Citizenship is granted only to Muslims78 and has a duty to respect and promote Islam,79 and every citizen must fulfil the duty to promote the democratic values and practices not in contrary to the tenets of Islam.80

  5. v.  Every person residing in the Maldives has the duty to respect these responsibilities.81

  6. vi.  The President,82 members of the Majlis,83 and the members of the Cabinet must be Muslim and followers of Sunni school of Islam.84

  7. vii  The President85 and the judges86 must not be persons who have been convicted of any criminal offence for which a ḥadd (plural: ḥudūd) is prescribed in Islam.

  8. viii.  The President can be removed if the President is in a direct violation of a tenet of Islam.87

  9. ix.  Education must endeavour obedience and love to Islam.88

  10. x.  Judges appointed for the Supreme Court must be trained in Islamic Shariah or law.89

  11. xi.  Members of the Security Forces90 must have a duty to act without any discrimination in accordance with the decorous principles of Islam.91

  12. xii.  The oath of the President, Vice President, members of the Cabinet, members of the Majlis, members of the independent commissions and offices entails respect to Islam.92

  13. xiii.  The Constitution prohibits all offences under Shariah,93 which could be argued as giving a constitutional status to Article 88(a) of the Penal Code of 1966. The only difference it would make could be because of the limitation of the scope of Islamic Shariah by the current constitution.

These provisions, including the theocratic provisions mentioned in the previous section, envisage the degree of the theocracy in the constitution, and where it falls under the classification of Intisar A. Rabb.94 The provisions also help to vouchsafe as to whether or not the Constitution possesses the four elements of the “ideal” constitutional theocracy suggested by Ran Hirschl.95

Firstly, when examining the theocratic provisions under Rabb’s classification, the following implications can be concluded:

  1. i.  The constitutionalisation of Islamic law in Maldivian law does not fall to the “dominant constitutionalisation,” since Islamic law is not the supreme law.

  2. ii.  The Constitution incorporates Islamic law and judges have the judicial review power of the law, not the clerics, however, there is a symbolic weight in the opinions of jurists due to the definitions given to Islamic Shariah and tenets of Islam in the Constitution, therefore, it could be seen as a delegated form of constitutionalisation.

  3. iii.  The constitution incorporates Islamic law, democracy and liberal norms but not with the same degree as in coordinate constitutionalisation; however, the tenets of Islam are given superiority over other norms.

These implications suggest that the constitutionalisation of Islamic law in the Constitution is a hybrid of delegated and coordinate constitutionalisation, or more of a delegated constitutionalisation.

Secondly, on the examination of the four elements of the “ideal” constitutional theocracy of Ran Hirschl, the following implications can be concluded:

  1. i.  The Constitution adheres to core elements of modern constitutionalism, recognising only the political authority, not the religious authority, and a judicial review is accepted under the Constitution, therefore, the first element is fulfilled.

  2. ii.  The Constitution endorses that the religion of Islam is the State religion, therefore, the second element is fulfilled.

  3. iii.  The Constitution obligates that the religion of Islam is a primary source of Maldivian law, which satisfies the third element.

  4. iv.  The Constitution does not allow the religious bodies to act as a civil court system, not even when it carries the symbolic weight to carry any official jurisdictional status; therefore the fourth element is not established.

These implications lead us to conclude that the Maldives is not an “ideal” constitutional theocracy as proposed by Ran Hirschl. On the same footing, it is submitted that Hirschl’s model has flaws for the following reasons:

  1. i.  The first element requires the political authority to be separate from the religious authority; however, the fourth element gives a symbolic weight, or a formal jurisdictional role, to religious bodies in tandem with the civil court system.

  2. ii.  There could be an ideal constitutional theocracy, even without giving a role for the religious bodies to act as, or at, the same level as a court or civil court system. For the reason that jurisprudence is influenced by the legal-mood or the background of the jurists, the quasi-political role jurists play in Islamic societies, and the inconsistencies that may arise due to the traditional interpretations of Islamic law by some jurists, could lead to a diminution of the liberal values and elements of a modern constitution, it might be prudent to offer jurists an informal role.

  3. iii.  Moreover, as Asifa Quraishi argues, there is no requirement in Islamic law that the state should govern Islamic law; however, if the minorities want their law governed by the State, then it is always best to allow for diversity within the Islamic legal tradition.96

Therefore, it is submitted that the Maldivian constitution be accepted as the model for constitutional theocracy, in which the three elements of Hirschl’s ideal constitutional theocracy are present, and, indirectly, the purpose of the fourth element is also there, according to consideration of the majority rulings on Islamic Shariah and the tenets of Islam. Such acceptance would help to reduce the inconsistencies that arise due to the diverse opinions on rulings.

However, these implications also suggest that the Maldivian Constitution is a theocratic Constitution and that there is a well-established constitutional theocracy.

The next section discusses how Islamic Shariah has been codified in the current penal code and in other laws of the Maldives.

V.  Role of Islamic Shariah in the Current Penal Code and other Laws

The current penal code has been claimed to be one of the contemporary penal codes of a Muslim-country which is compatible with the norms of international human rights. This penal code has also reinforced significant Shariah rules relating to crime and punishment as the repugnancy clauses of the Constitution uphold any such incorporation of Islamic law. Islamic Shariah was a significant source in drafting this penal code.97

Section 12 states that nothing is an offence which is not proscribed under the Penal Code or any other law of the Maldives.98 It should be noted that, even though this definition does not entail Shariah offences, by virtue of Article 59 of the Constitution, any offence prescribed in Shariah constitutes an offence.

Section 53(b) of the Penal Code protects juveniles who are between the ages of 15–18 years from criminal responsibility, however, subsection (c) exempts that principle in cases of ḥadd offences, though the enforcement of such punishment to be implemented after the juvenile has reached 18 years of age.99

Furthermore, according to the Jinsee Kushu ge Qaanoonu (Sexual Offences Act), children between the ages of 16–18 can bear criminal responsibility.100

Examining the Regulation made under the Dhivehi Rayyithun ge Dheenee Ebbaivanthakan Himaayaiy Kurumu ge Qaanoonu (Protection of Religious Unity Act of the Maldivians), it is seen that the propagation of any religion other than Islam, the production or distribution or publicising of any slogan representing any religion other than Islam, is prohibited.101 Even for non-Muslims (foreigners), expressing or publicly displaying their religious slogans or holding gatherings to practice or propagate their religion, or to include any Maldivian in any such activity, is prohibited.102

Furthermore, even though the Penal Code has not explicitly prescribed apostasy, under Article 59 of the Constitution, and under Article 1205 of the Penal Code,103 a person can be prosecuted for apostasy. The Penal Code also explicitly criminalizes blasphemy.104 The Regulation on the Protection of the Religious Unity of Maldivians, also prohibits the insulting Allah or Prophets, demeaning the love and respect for the Prophets, by verbally, drawing or promoting any such slogan in any other form.105 The Regulation also prohibits insulting, or committing any action that may offend Islamic slogans, which includes uttering a word or drawing anything that insults Allah, Prophet Mohamed, the Quran, and Islamic Mosques.106

Despite the fact that Maldivian law, in principle, criminalises all Shariah offences, and generally prescribes the ḥadd and qiṣāṣ offences, dissimilar punishments for these offences are prescribed in law: for example, for fornication, there is no punishment of execution by stoning (rajm), for theft, it is not amputation but imprisonment; and for blasphemy there is no death penalty, instead, imprisonment. The Maldivian law imposes punishments as similar to Shariah such as flogging and death penalty. Other than that, the Maldivian law does not include the explicit punishments such as amputation of the right hand (qat‘), cross-amputation (al-qat‘ min khilāf), retaliation for injuries (qiṣāṣ ma dun al-nafs) or the death penalty through or in combination with crucifixion (ṣalb) in Shariah. In the case of the death penalty, Maldives has had a moratorium on the implementation of the death penalty since 1954.107

Article 1205 of the Penal Code affirms the ḥadd and qiṣāṣ punishments in Shariah, was amended after a year to its enactment to include two additional layers before the enforcement of the punishments:

  1. i.  the sentence must be enforced only if the Supreme Court affirms the judgement;

  2. ii.  even after the Supreme Court’s judgement, the President, acting as the Ḥākim108 under Shariah, within the boundaries of Shariah, may exercise discretionary powers.109

The second layer is both a safeguard and a means of preventing certain punishments in Shariah. This signals that, even in sentences for ḥadd and qiṣāṣ offences, the President can commute the punishments. However, since this clause has not been invoked since the amendment passed,110 and the way in which courts interpret Islamic Shariah, it is doubtful whether the President would have the power to commute any punishment made under Article 1205.

As a result of the repugnancy clauses of the Constitution, it is not just that this limited the Bill of Rights and affirmed Shariah offences and punishments. These clauses also influenced other laws such as the Jinsee Kushuge Qaanoonu (Sexual Offences Act of 2014)111 and more recently, the Gender Eequality ge Qaanoonu (Gender Equality Act of 2016).112

VI.  Islamic Clauses Result in Reservations to International Human Rights Treaties

The Maldives has made several reservations to international human rights treaties based on the Islamic clauses in the constitution. For example, the reservation made to Article 18 of the International Covenant on Civil and Political Rights (ICCPR) was to defend the Shariah rules governing blasphemy and freedom of religion.113 The reservation made to the Convention on the Rights of the Child (CRC) was explicit in justifying the reservation on Shariah which states that:

‘[s]‌ince the Islamic Shariah is one of the fundamental sources of Maldivian Law and since Islamic Shariah does not include the system of adoption among the ways and means for the protection and care of children contained in Shariah, the Government of the Republic of Maldives expresses its reservation with respect to all the clauses and provisions relating to adoption in the said Convention on the Rights of the Child.114

The reservation made to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) stated that the compliance to the convention is subject to the ‘principles of Islamic Shariah upon which the laws and traditions of the Maldives are founded’ while expressing a waiver from any obligation to change of the constitution and laws.115 In 1999 the reservation was modified to two provisions of the CEDAW: articles 7(a) and 16. The reservation for Article 7(a) was based on Article 34 of the then Constitution, which could be argued as being based on Shariah—only males to hold the highest office, such as the head of state or head of government. The reservation for Article 16 was explicit in that the reason for the reservation was to reserve the right to apply article 16 of the Convention concerning the equality of men and women in all matters relating to marriage and family relations without prejudice to the provisions of the Islamic Sharia, which govern all marital and family relations of the 100 percent Muslim population of the Maldives.116 This remained in place until the reservation was partially withdrawn in 2010 due to the removal of the restrictions on gender in running for publicly elected bodies.117 However, it should be noted that the mere absence or inexplicit reference to Islamic Shariah in reservations does not make the treaty fully enforceable in the Maldives—because, reference to the Constitution of the Maldives in a reservation is likely to indirectly refer to Islamic law, by virtue of the Islamic clauses in the Constitution.

It is true that the reservation made by the Maldives to CEDAW and other instruments is very general and obscure. And, though these reservations negate the very purpose of these conventions, in particular, the reservation made to CEDAW is unenforceable for two reasons:

  1. i.  Firstly, the constitutional article referred to in the reservation is unenforceable due the constitutional revolution. The purpose of the reservation is non-existent because under the current Constitution, there is no restriction on gender in contesting for presidential elections; and

  2. ii.  Secondly, the reservation made to Article 16 of the CEDAW based on Islamic Shar’iah, must be read in line with Articles 16, 17(b), 10 and 70 of the Constitution which obliges adherence to the tenets of Islam, however, it does allow rejection of the application of Islamic Shariah.

VII.  Conclusion

It is argued that Shariah becomes law not only through codification and legislation, but also by interpretation.118 This study has attempted to address how Shariah became part of the Maldivian law through codification and legislation. However, this study lacks any discussion on how the Maldivian courts interpret the Islamic clauses in the constitution and laws, more importantly in human rights adjudication where the effects of the Islamic clauses are more likely to influence the interpretation and scope of the rights and freedoms.

The analysis of the relevant historical scholarship suggests that Islam has had a significant influence on the Maldivian legal system throughout the history—both before and after the written constitutionalism. This study also suggests that, with time, the reliance on Islam, and more specifically on Islamic Shariah, has gained momentum. This research finds that the current Constitution is a revolutionary advancement in terms of the Islamisation of the Constitution, which has also resulted in the affirmation of the existing Shariah rules codified in the legislation, and the strict adherence to Shariah rules in framing other laws and regulations. It is also found that the Shariah rules relating to the legal status of women, the personal status laws and crime and punishment are codified in the Maldivian law, however with significant discrepancies not bound by any particular school of thought within the Sunni schools.

This article argues that the Islamness of the Maldivian Constitution and laws can be fully confirmed after an empirical analysis of the constitutional or other relevant cases decided by the Maldivian courts. The author hopes that this study will provide an impetus and direction for future prospective empirical research.

Footnotes:

This article is divided into seven parts including the conclusion. It is beyond the ambit of this article to conduct an empirical analysis of the relevant jurisprudence of the Maldivian courts which the author intends to supplement with another study.

Allama hmed Shihabuddine, Kitab Fi Athaari Meedhoo El-Qadimiyyeh (Dhoondeyri Don Maniku tr, no date).

According to Maloney, Maldives was a Buddhist country before the 1153 A.C. Since the 12th Century until today, the religion of Maldives is being Islam. See Clarence Maloney, ‘The Maldives: New Stresses in an Old Nation’ (1976) 16 Asian Survey 654.

Mohamed Ibrahim Luthufi, Ibn Battuta in the Maldives (National Centre for Linguistic and Historical Research 1991) vol 32, 127; Husnu Al Suood, The Maldivian Legal System (Maldives Law Institute 2014) 28.

Mālikī school is attributed to Mālik ibn Anas al-asbaḥī. This school is originally referred to as the School of Hejaz or the School of Medina. L Esposito John, ‘Maliki School of Law’, The Oxford Dictionary of Islam (Oxford Islamic Studies Online no date).

Shaheed Ahmed, ‘Future Prospects for Islam and Democracy: A View from the Maldives’ (2009) 3 Arches Quarterly 53, 54.

Naseema Mohamed, ‘Pre-Islamic Maldives’ (2002) XXVII Man and Environment Journal, 1.

Hassan Ahmed Maniku, ‘Archaeology in Maldives: An Historical Survey’ (South Asian Archaeological Congress, Male’, Maldives, 1993).

Mohamed (n 8) 2.

10  Suood (n 5) III.

11  Department of Information and Broadcasting, Maldives: Constitutional History (Department of Information and Broadcasting 1990) 5.

12  The life of the first constitution was not long because it was claimed to be “impractical.” Mohamed Amin Didi, Dhivehiraajjeyge Qaanoon Asaaseege Hayaaiy (2nd edn, Novelty Printers and Publishers 1951) 15; Ahmed Shakir claims that the reason for the abolishment of the First Constitution was because the Maldivians were not situation-aware to accept a law, but rather, were “used” to customs. Ahmed Shakir, Vihivana Qarunugethereygai Dhviehiraajje (Novelty Press 2004) vol 1, 28.

13  Afghanistan adopted its first constitution before the First Constitution of the Maldives, however, Afghanistan joined the South Asian Association for Regional Cooperation (SAARC) in 2003, until then, Afghanistan was not considered as a South Asian country.

14  Marcus Einfeld, ‘Strengthening the Maldivian Judicial System’ (Male’, Maldives, Attorney General’s Office no date) <http://www.mvlaw.gov.mv/pdf/publications/9.pdf> accessed 29 October 2016.

15  Shakir (n 13) 49.

16  Ibid, 50; According to Abdul Hakeem Hussain Maniku, this constitution lasted for 7 months and 20 days. Abdul Hakeem Hussain Maniku, Iyye (Novelty Printers and Publishers 1997) 33.

17  Dhivehi Thaareekhaai Sagaafathah Khidhumaiy Kuraa Majlis, Dhivehi Thaareekh (Dhivehi Thaareekhaai Sagaafathah Khidhumaiy Kuraa Majlis 1981) 77–78.

18  Muḥammad Ibn-ʿAbdallāh Ibn-Baṭṭūṭa and Hamilton AR Gibb, The Travels of Ibn Baṭṭūṭa: A.D. 1325–1354 (1. Indian ed, Munshiram Manoharlal Publ 1993) 241–54.

19  Ibrahim Luthufi (n 5) 94.

20  Francois Pyrard de Laval, The Voyage of Francois Pyrard of Laval to the East Indies, the Maldives, the Moluccas and Brazil (Albert Gray tr, 1611) vol 1, ch 14.

21  Mohamed Ismail Didi, Pyrardge Galamun Dhivehiraajje (National Centre for Linguistic and Historical Research 1995) vol 55, 233–34.

22  Pyrard de Laval (n 21) vol. 1, ch 14.

23  Ibid.

24  Amputation was practiced in 1953 on two convicts. This will be discussed in Part II, section B of this article.

25  See the first decree at the beginning of the First Constitution of the Maldives. Constitution of the Maldives 1932 3 (Maldives).

26  He is silent about whether it was based on the then Constitution of Egypt (which is the Constitution of 1930) or the Constitution of 1923.

27  Amin Didi (n 13) 15.

28  Constitution of the Republic of Maldives 2008 s 10(a) (Maldives).

29  Constitution of the Maldives 1932, s 3.

30  Constitution of Egypt 1930 s 138 (Egypt).

31  Constitution of Egypt 1923 s 149 (Egypt). Since the first constitution of Egypt, this has remained in all the subsequent constitutions.

32  The Bill of Rights is under the heading ‘Rights of the Citizens.’ Constitution of the Maldives 1932, ss 4–21.

33  The right to education and to educate is limited to the extent that it is not contrary to the law and morality. Ibid, s 15.

34  Constitution of the Maldives 1934 (First Amendment to the First Constitution (1932)) s 15 (Maldives).

35  Ibid, s 5.

36  Ibid, s 6.

37  Ibid, s 12.

38  Constitution of the Maldives 1937 (Second Amendment to the First Constitution (1932)) s 16 (Maldives).

39  Ibid, s 4.

40  Constitution of the Maldives 1967 (Second Amendment to the Fourth Constitution (1954)) s 16 (Maldives).

41  Constitution of the Maldives 1934 (First Amendment to the First Constitution (1932)), s 38.

42  Constitution of the Maldives 1932, s 84.

43  Constitution of the Maldives 1934 (First Amendment to the First Constitution (1932)), s 26.

44  Ibid, s 72.

45  Ibid.

46  Constitution of the Maldives 1953 s 17(a) (Maldives) This Senate system remained only under this Constitution. It was abolished in the subsequent constitutions.

47  Suood (n 5) 45.

48  This regulation codified the Shariah rules involving criminal procedure, punishments and evidence.

49  Suood (n 5) 49.

50  Dhivehiraajjeyge Qaanoonul Uqoobaath 1961 s 15 (Maldives).

51  Dhivehiraajjeyge Qaanoonul Uqoobaath 1966 s 88(a) (Maldives)’It is an offence to disobey an order issued lawfully within the Shari’ah or Law, persons guilty of this offence shall be subjected to a punishment of exile or imprisonment or house detention not exceeding 6 months or fine not exceeding Mrf. 150.00.’.

52  Dhivehiraajjeyge Qaanoonul Uqoobaath 1961, s 28(n).

53  Anhenunge Heki Bahuge Qaanoonu (Maldives 1972).

54  Hekkaabehey Qaanoonu s 7 (Maldives 1976).

55  Constitution of the Republic of Maldives 2008, s 2.

56  Constitution of the Islamic Republic of Iran s 1 (Iran 1979).

57  Constitution of the Islamic Republic of Pakistan s 1 (Pakistan 1973).

58  Constitution of Afghanistan s 1 (Afghanistan 2004).

59  Constitution of the State of Bahrain s 1 (Bahrain 1973).

60  See the Preamble of the Constitution of the Islamic Republic of Pakistan.

61  Constitution of the Republic of Maldives 2008, ch Four and Five.

62  Ibid, ch Third.

63  Ibid, ch 6.

64  Ibid, s 10(a).

65  Ibid, s 274(a).

66  Ibid, s 142.

67  According to Articles 10(b) and 70(b)(2) and (c) of the Constitution no law can be made against the tenets of Islam. Ibid, s 10(b), 70(2)(b), (c).

68  Ibid, s 274(a).

69  Ibid.

70  Suood (n 5) 109.

71  According to Articles 10(b) and 70(2)(b) and (c) of the Constitution no law can be made against the tenets of Islam. Constitution of the Republic of Maldives 2008, s 10(b), 70(2)(b), (c).

72  See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence (Rev. ed, Islamic Texts Society 1991); Raj Bhala,Understanding Islamic Law: Sharī ‘a ‘(Understanding series, LexisNexis 2011) ch 12 and 13.

73  Suood (n 5) 76.

74  They argue that Constitutional Islamisation is a ‘staple feature’ of the Constitutions of forty percent of Muslim states. Dawood Ahmed and Tom Ginsburg, ‘Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions’ [2014] VaJInt’l L 615, 635.

75  Dawood I Ahmed and Moamen Gouda, ‘Measuring Constitutional Islamization: The Islamic Constitutions Index’ (2015) 38 Hastings Int’l & CompLRev 1, 50.

76  Constitution of the Republic of Maldives 2008, s 10(a).

77  Ibid, s 16.

78  Ibid, s 9(d) Since the First Constitution of the Maldives, except in the Little Constitution, until the current Constitution, a Maldivian citizen is defined by the Constitution with certain criteria, however, there is no requirement that the person must be a Muslim to be a Maldivian citizen. This requirement also suggests that a citizen may lose the Maldivian citizenship if the person leaves the religion of Islam. This also suggests that there is no sectarian (Sunni/Shia) discrimination on citizenship. However, certain public offices such as members of the Majlis (art 73[a]‌[3]), the President (art 109[b]), ministers (art 130[a][3]), and judges (art 149[b][1]) must be a Muslim and followers of the Sunni school of Islam.

79  Ibid, s 67.

80  Ibid, s 67(f).

81  Ibid, s 67.

82  Ibid, s 109.

83  Ibid, s 73(a)(3).

84  Ibid, s 130.

85  Ibid, s 109(g).

86  Ibid at 149(b)(3).

87  Ibid, s 100(a)(1).

88  Ibid, s 36(c).

89  Ibid, s 149(c).

90  The Security Forces consist of the Military Service and the Police Service. Ibid, s 236.

91  Ibid, s 246.

92  Constitution of the Republic of Maldives 2008, Schedule 1.

93  Ibid, s 59(a) ‘No person shall be found guilty of any act or omission which did not constitute an offence under Islamic Shari’ah or law at the time committed. Nor shall a more severe penalty be imposed than the one applicable at the time the offence was committed. If the punishment for an offence has been reduced between the time of commission and the time of sentencing, the accused is entitled to the benefit of the lesser punishment.’.

94  Intisar Rabb, ‘ “We the Jurists”: Islamic Constitutionalism in Iraq’ (2008) 10 University of Pennsylvania Journal of Constitutional Law 527, 14.

95  Ran Hirschl, ‘The Rise of Constitutional Theocracy’ (2008) 49 Harv Int’l LJ Online 72, 74.

96  See Asifa Quraishi, ‘Interpreting the Qur’an and the Constitution: Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence’ (2006) 28 Cardozo Law Review; Asifa Quraishi-Landes, ‘Islamic Constitutionalism: Not Secular. Not Theocratic. Not Impossible.’ (2015) 16 Rutgers Journal of Law and Religion 553; Asifa Quraishi-Landes, ‘Legal Pluralism in an Islamic State: Reflections on the Afghan Constitution’ [2015] HBORL Working Paper 1; Asifa Quraishi, ‘Who Says Shari’a Demands the Stoning of Women—A Description of Islamic Law and Constitutionalism’ (2012–13) 57 New York Law School Law Review 163.

97  See Paul H Robinson and others, ‘Codifying Shari’a: International Norms, Legality & the Freedom to Invent New Forms’ (2007) 2 Journal of Comparative Law.

98  Dhivehi Raajjey ge Qaanoonul Uqoobaathu s 12 (Maldives 2014) (translation: Penal Code of the Maldives).

99  Ibid, s 53(c) (translation: Penal Code of the Maldives).

100  Jinsee Kushu ge Qaanoonu s 69(g) (Maldives 2014) (translation: Sexual Offences Act).

101  Dhivehi Rayyithun ge Dheenee Ebbaivanthakan Himaayaiy Kurumu ge Qavaidhu s 4(b), 6, 7, 9, 10 (Maldives 2011).

102  Ibid, s 9.

103  Section 1205 of the Penal Code states that, notwithstanding other provisions of the Penal Code to the contrary, if a person is convicted of any ḥadd offence prescribed in Islamic Sharī‘ah or any offence of Qiṣāṣ (legal retaliation), the penalty prescribed in Islamic Sharī‘ah shall be imposed in accordance with Islamic Sharī‘ah. Dhivehi Raajjey ge Qaanoonul Uqoobaathu, s 1205(a).

104  Ibid, s 617 (translation: Penal Code of the Maldives).

105  Dhivehi Rayyithun ge Dheenee Ebbaivanthakan Himaayaiy Kurumu ge Qavaidhu, s 8.

106  Ibid, s 10.

107  Amnesty International, ‘Death Sentences and Executions 2015’ (Amnesty International Global Report, Amnesty International 2016) 34 However, death penalty is still imposed and considered as constitutional by the Supreme Court of the Maldives.

108  Ruler of an Islamic state.

109  Qaanoonu Nanbaru 9/2014 (Dhivehi Raajjeyge QaanoonulU’qoobaathu) ah 3 vana Islaahu Genaumuge Qaanoonu s 3 (Maldives 2015).

110  A relevant provision in the Ma’aaaf Dhinumaai Adhabu Luikoh Dhinumuge Qaanoonu (Clemency Act 2010) was challenged in the High Court but was dismissed on admissible grounds. Discussion in Chapter 5, section 5.3.1.

111  When the Sexual Offences Bill was passed by the Majlis, Article 6 of the Bill included marital rape within the definition of rape, however, the President, due to the pressure from the religious clerics calling that the Bill was unconstitutional as per the repugnancy clauses of the Constitution, returned the Bill to the Majlis for reconsideration stating that the Bill contain provisions that are contrary to Islamic Shariah and Islamic principles. Jinsee Kushu ge Qaanoonu, s 6.

112  The Article 3 of this Act requires the interpretation of the Act to be consistent with the tenets of Islam and to consider the reservations made by the Maldives to the international human rights treaties thereby limiting the interpretation to be within the bounds of Shariah-based reservations as discussed in Part VI of this article. Gender Equality ge Qaanoonu 2014 s 3 (Maldives).

113  The reservation states: ‘The application of the principles set out in Article 18 of the Covenant shall be without prejudice to the Constitution of the Republic of Maldives.’ Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations I Nos 43066-43071 Annexes A, C at 288 (2010).

114  This reservation was made to the Article 14(1) of the Convention. The reservation also states that: ‘The Government of the Republic of Maldives expresses its reservation to paragraph 1 of article 14 of the said Convention on the Rights of the Child, since the Constitution and the Laws of the Republic of Maldives stipulate that all Maldivians should be Muslims.’ Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations 1577 at 173 (1999).

115  United Nations Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations 1726 at 238.

116  United Nations Treaties and international agreements registered or filed and recorded with the Secretariat of the United Nations 2052 at 72.

117  United Nations, ‘Treaties and International Agreements Registered or Filed and Recorded with the Secretariat of the United Nations’ (Treaty Series, United Nations 2010) 65.

118  Bernard G Weiss, ‘The Search For God’s Law: Islamic Jurisprudence In The Writings Of Sayf Al-Din Al-Amidi’ [1992] University of Utah Press, 36.