Tariq Ramadan renews appeal to stop executions

This note contains a detailed analysis of four death row cases. Three of the prisoners have had their death sentences confirmed by the Supreme Court of the Maldives and are therefore eligible for imminent execution: Hussein Humaam Ahmed, Ahmed Murrath and Mohamed Nabeel. The fourth individual, Fathimath Hana, is the co-defendant of Ahmed Murrath and her appeal is pending before the Supreme Court. The information regarding the facts of each case is based on translated transcripts of court documents. I would of course be grateful for the opportunity to review the full details of each case and to consult more broadly with the various actors involved in them to allow me to give a more considered opinion.

Looking in detail at these four cases, it is quite clear that there are serious problems in relation to the Islamic principles, the Islamic understanding, and even in the methodology that has been used to determine an appropriate sentence of punishment for the accused. To best explain this, I will start by looking at the key principles that must be taken into consideration during any trial, from an Islamic perspective according to Shari’ah.

1. The first principle is that at the end of the trial there should be no reasonable doubt as to the guilt of the accused. Yet quite clearly this is not so for any one of the four cases outlined. To reiterate, there should be no reasonable doubt.
2. Related to the principle above is a second principle, such that it must be quite clear that the accused is not suffering from any psychological disease or mental health issues. To consider this another way, it must be clear that the accused was in absolute full awareness of his/her actions at the time of the crime committed. With regard to the four specific cases under discussion; the case of Hussain Humaam Ahmed is relevant as there is the possibility of a psychological issue that has not been fully taken into account.
3. The third principle relates to the requirement for the provision of sound legal counsel. Once again, we have cases here where the accused has had no legal counsel. In the case of Fathimath Hana, whilst she expressed that she did not require legal counsel, it must be taken into account that she was only 18 years old at the time of her sentencing by the Criminal Court. Therefore, whilst physically mature and legally considered of adult-age, Hana would nevertheless have been very young emotionally and mentally. With this in mind, it would clearly have been impossible for her to defend herself and in no way appropriate for her not to have any legal counsel. To reiterate, legal counsel is a condition to ensuring a fair trial from an Islamic perspective.
4. The fourth condition is that a confession must be extracted without coercion. Yet it is clear that there is at least a suspicion that some of these confessions were given under duress or through coercion. We should also note that if an accused person asks later to retract their statement of confession, such a request implies, at the very least, that there is some doubt as to the accused. If there is even the slightest doubt, the sentencing of execution cannot be implemented in the name of Sharī’ah. As a final point, beyond the aforementioned critique, we should also note that Sharī’ah always puts forgiveness before the sense of accusing people.

These four main principals are highly significant in relation to these four cases, and raise immediate concerns as to correct sentencing of the accused from an Islamic perspective.

Going further still, there are three other elements or conditions related to both the legal study and the methodology in issuing a legal opinion or a sentence that are very important from the Islamic perspective.

1. The first relates to the use of legal opinions that are not coming from the mainstream school of thought that is being practiced in the country. In the Maldives, the Shāfiʿī school of thought is the main following, so it is very strange to see that the religious scholars are taking guidance from the other schools of thought such as the Mālikī, the Ḥanafī and the Ḥanbalī not to ease the way, as it is the common Islamic way, but to make it tougher. The judges’ ways appear to contradict the usual practice of seeking a way to ease the pain or the accusation, as they appear instead to be seeking a harsher dealing. This is contrary to the Islamic way of doing things. The Islamic way is such that one generally only looks beyond the mainstream school of thought in order to find a way to ease whatever the particular challenge is. For example, one may consider whether another school of thought might recommend a less rigid or severe alternative. In one of these cases, with the use of the Ḥanbalī school of thought with Ibn Taymiyyah, it is clear that the judges want the consequences for the accused to be as harsh as possible before trying to look for the real evidences. Once again it seems as if the actions and the harsh sentencing are politically motivated rather than being based on any rigorous Islamic methodology.

2. Another important principle is the involvement of the family of the victim(s) in the sentencing, or application of qiṣās. The family’s agreement should be unanimous. If it is not, the court should not try to find another opinion based on the rationale that one should rely on necessity under the justification. The assertion that we do not want to wait for the young heirs of the victim(s) to become of adult age because timely action is essential to avoid or prevent the society from falling into social disarray. To put the accused in prison is sufficient—there is no increase in social disorder if they are imprisoned until such a time as the victim’s family or the heir(s) reach maturity and these heirs can decide. This is an example of a problem with the entire methodology and its lack of rigor—inappropriately seeking and applying opinions to be tougher on people instead of lightening the burden. This is an erroneous perception and understanding of Sharī’ah in all the schools of law. When it comes to Sharī’ah, it should be a way of avoiding harshness in any case (yassir wa la tu’assir), meaning one must facilitate and not do things more harshly.
3. The third point in this second part of the critique relates to the Islamic sources and the application of these sources. For example, verses of the Qur’an and the Ḥadīth, are at times, taken literally. More importantly, even secondary sources are sometimes taken as if they were complete sources, such as the books Fiqh us-Sunnah and Al-fiqh al-islamī . Yet these are introductory simplified books, with no in-depth study of the verses of the Qur’an, the Hādīth and the huge legal tradition (turāth). They are simply a general positioning, a very broad exploration of all the schools of law. As such, we would be mistaken to rely on these books in any scholarly way to decide whether to sentence a person to death or indeed whether to implement such an execution.
4. Having read summaries of the judgment transcripts and considered the matter at some length, it is evident that there are serious doubts and serious concerns with all four of these cases, in relation to Sharī’ah and Islamic jurisprudence. There are many questions as to whether the letter and spirit of Sharī’ah, the meaning of Sharī’ah, the conditions of Sharī’ah and also the text and the studies by our scholars have been entirely respected. Whether or not this is a demonstration of political intention to be harsh with society, there are serious doubts about the entire process. We cannot fail to wonder whether all these decisions are politically-driven because of the current situation within the society. To instrumentalise the reference to Sharī’ah for political reasons cannot be justified when it comes to sentencing people to death. That is not possible—this is in not an Islamic principle. Furthermore, we will not solve the problems of corruption, transparency and social justice by being harsh with victims. There is only one way forward and that is to be just and to acknowledge the fact that all the correct conditions should be in effect when taking actions in the name of Sharī’ah. As mentioned previously, the said conditions must be in place before one can even begin to start considering this type of serious consequence for the accused, and this is definitely not at all the case for any of the four murder convictions here.