Why the sentence on death by stoning is unconstitutional

By Shahindha Ismail and Mushfique Mohamed

On October 18, a Maldivian woman, charged with birth out of wedlock, was sentenced to death by stoning, a first in Maldivian history.

Although the charge of birth out of wedlock only carries a penalty of home detention for a one-year period, the Gaaf Alif Gemanafushi magistrate court sentenced the woman to death by stoning.

Following a public outcry, the Supreme Court on the same day, overruled the lower court’s decision.

The island court’s decision contravenes the provisions that emphasize non-discrimination, equality, human dignity and fair trial rights in the Maldives Constitution and international human rights conventions that the Maldives is signatory to.

Some noteworthy issues:

1. The verdict: The magistrate’s role is to ascertain whether the specific charges filed against the defendant are proven beyond reasonable doubt, based on the evidence submitted to the court, not to convict the defendant of an arbitrary charge. The Prosecutor General’s Office charged the Gemanafushi woman with the offence of ‘birth out of wedlock.’ The penalty for the offence is prescribed under Section 100 of the 1989 Judicature Regulation, which states that offenders shall be subject to home detention for a period not exceeding one year. But, in this case the magistrate sentenced the woman to death by stoning.
2. Death by stoning: Literature shows that not all Islamic scholars agree on the penalty of death by stoning, sanctioned for hadd or hudud offences. Although hadd offences are stated in the Quran, the penalties for those offences are not mentioned.Section 1205 of the 2014 Penal Code states that if a person is found guilty of a hadd offence – to the extent of practical certainty as per standard of proof established under Islamic Sharia – the punishment prescribed in the Quran shall be adjudged.A judge presiding over such a matter should primarily ascertain two aspects – whether ‘birth out of wedlock’ is a hadd offence, and whether charges have been proved beyond reasonable doubt as specified by the penal code; the answer to both questions here is a resounding no.
3. Section 1205 of the Penal Code: This section does not specify the punishment for being convicted of a hadd offence under Islamic Sharia. The penal code stipulates standards for punishments of all other areas.Section 1205 differs from other codified provisions because it was a change brought through an amendment after the enactment of the penal code.The amendment raises several issues: inconsistency of punishments levied by courts in cases where the facts are the same. The lack of punitive provisions under this section enables individual judges with the discretion to pass judgments as they see fit, in cases involving hadd offences.This prevents individuals from being treated with equality as guaranteed by the constitution and international treaties that invoke civil and political rights.
4. The charge: Charges were lodged against the individual in this case before the implementation of the new penal code. The current penal code does not recognize ‘birth out of wedlock’ as a criminal offence.Instead, the provision prescribing punishment for such offences can be found under Section 411, pursuant to the crime of adultery. The offence of pre or extra marital sex can be divided into two categories. One is the hadd offence called zina under Islamic Sharia. If a woman gives birth out of wedlock, but does not produce a confession as required to convict her of zina under Islamic Sharia, then the offence would fall under the statutory crime of adultery. Video footage, DNA and other documentary evidence can be submitted in order to prove guilt of statutory adultery. The penalty for committing the offence would be home detention for the duration of one year.Stoning to death is not mentioned under any law as the prescribed punishment for such cases.Hussein Shameem, an Islamic Sharia graduate from Al-Azhar University and local expert on the current penal code has said: “This case was investigated as a case of adultery. The accused did not confess to it during the investigation stage, therefore prosecutors filed charges of ‘birth out of wedlock.’ However, when the accused confessed to the crime during court proceedings, it suggested that she was untruthful in one instance. The resulting contradiction is inherently a reasonable doubt. The juridical norm would be to acquit the defendant in this situation.”
5. The Supreme Court of Maldives overrules the sentence: In annulling the magistrate court’s ruling, the Supreme Court said that the ruling “contravened the judicial and legal procedures established to proceed with such judicial matters.”In this regard, it is important to look into the procedure to be followed in cases where the sentence is unrelated to the initial charges filed.The appropriate procedure is to appeal such cases as per Section 56 of the Constitution, which guarantee the right of appeal.The Supreme Court overruling a lower court’s judgments in such a manner creates serious issues with regard to the delivery of judicial propriety under the criminal justice system.It paves the way for the apex court to override due process through annulment of lower court sentences without trial, leaving the defendant no opportunity to pursue an appeal.

Shahindha Ismail is the executive director of human rights NGO Maldivian Democracy Networ. Mohamed Mushfiq is a legal consultant at the NGO. 

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