Supreme Court Strikes Down Penal Code Article Obstructing Qisas Implementation
The Supreme Court has taken a significant decision to remove a legal hurdle that obstructed the implementation of ‘qisas’ (retaliation in kind, legal retribution, or retributive justice) in accordance with Islamic Shariah. The move came as part of the court’s decision to uphold the High Court’s ruling of capital punishment for Mohamed Shaifan, who was convicted of the murder of Ali Shifan a decade ago near West Park.
The four-judge bench of the Supreme Court announced its decision on Thursday, effectively rescinding Article 1204 (c.2) of the Maldives Penal Code. This article had been a point of contention as it stated that if there was any contradiction between the evidence presented through a witness statement and any other witness statement, the guilt or culpability of the accused could not be proven to the necessary legal standard.
Justice Husnu Al Suood argued that Article 1204 (c.2) was framed in a manner that made it impossible to prove culpability, thereby obstructing the implementation of qisas. He emphasised that qisas is explicitly stipulated in the Quran and, therefore, Maldivian law must align with Islamic Shariah, without contradiction.
According to Justice Suood, Islamic Shariah requires the establishment of a murder with no doubt or obscurity, and Article 1204 (a) of the Penal Code already covers this requirement. Once this threshold is met in court, a guilty party can be sentenced to death.
However, Article 1204 (c.2) imposed additional conditions on the imposition of a death sentence, effectively hindering the process. Justices Mahaz Ali and Azmiralda Zahir supported Judge HusnuSuood’s proposal to rescind the article, which was ultimately approved.
In contrast, Justice Aisha Shujoon dissented from the consensus. She argued that Article 1204 (c.2) was necessary, as it prevented the imposition of a death sentence when there was contradictory evidence against the accused. She contended that the right to life, as guaranteed in the Constitution, could only be revoked through legislative means and not by interpretation.
Shujoon asserted that judges must base their decisions on the Constitution and laws, resorting to Islamic Shariah only in cases not explicitly covered by the former. She emphasised the legislative’s authority to draft laws and stated that the courts must recognize all duly ratified laws as valid.
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