Maldives: “There Is A Legal Duty Above Shari’ah,” says Information Minister

“The constitution [currently being drafted] now says judges will follow the law – the written law,” he explains, highlighting that Shari’ah law has no single written standard. This is in part what necessitates the planned legal reforms, he adds.

Maldivian law has historically employed Shari’ah for personal matters, and common law for public offences. But this has led to “a lack of case law or jurisprudence” in certain fields, says Nasheed, himself a trained lawyer. He argues changes will therefore be needed in areas such as inheritance.

“Different schools of Islamic thought exist,” he cautions, echoing remarks made by critics who in 2007 resisted the inclusion of references to Shari’ah in the constitution in progress.

But newly codified legislation in areas such as family law may risk a “literal and basic” interpretation of written law from some judges, according to Nasheed, who has previously said he prefers a “purpose-based” to a “language-based” approach. “It’s people from a Shari’ah perspective who have unfortunately gotten the jobs” as judges, he argues.

Therefore the government will add to its already extensive plans by creating “commentaries” and “reporting systems”. Nasheed adds that “Pakistan and Malaysia have codified Islamic law”, and so can Maldives.

Fundamentalism

The minister, a self-proclaimed “religious liberal”, recently spoke of an attempted “Talibanisation” of Maldives. He has strongly promoted “moderate” scholar Dr Afrashim Ali, who was assaulted at the weekend by worshippers unhappy with his religious practices.

Nasheed believes the assault is a sign of a growing religious intolerance.

Asked why religious extremism seems to be on the rise in the country, Nasheed says fundamentalists are “mimicking” movements in Afghanistan and Pakistan. As an example, “people have started importing goats because the Prophet had goats,” he says.

Nasheed has little time for religious conservatism, and expresses concern that some preachers spread messages such as “women must not laugh or dance” in Islam. What worries him especially is the attitude that “when people speak in the name of God, you don’t question them.”

Separation of the religious and political spheres is crucial, he believes. “The MDP [Maldivian Democratic Party] are in opposition, but we are speaking the same language: political language.” But groups such as the Adhaalath Party, who deliver “religious sermons”, Nasheed says, are “not talking about this same kind of politics.”

Yet Maldives is in the process of moving from a “consensual mode” of lawmaking and politics to an “adversarial mode”, he argues – saying “the dust will have to settle” before the effects can be seen in full.

Family

Nasheed seems to relish the debate over the role of religious law, which has already cut across party lines and in late 2007 threatened to derail the process of constitutional reform. When family law was previously reformed, making it more difficult for men to obtain a divorce, “people called us apostates,” he recalls.

But he is unequivocal about the benefits of changes which mean “you cannot divorce in your sitting room,” and the introduction of pre-nuptial agreements so that on marriage a woman does not have to “dissolve herself”. And he warns of Shari’ah traditions that contain “no concept of marital rape, or consent to sex”.

In keeping with this, the Information Ministry told Minivan News in response to an enquiry that the planned further reforms to family law will “be based upon the principles of Shari’ah, but the family relations will be regulated in a modern and locally conducive context.”

The constitution in progress “gives us the latitude to borrow principles from a wider perspective,” the Ministry added.

“Legal Duty”

Ultimately, “we must not lose sight of the international community,” Nasheed says. One simple reason is the country’s reliance on imports: “If there’s a truck strike in India, our onion [prices] go up.”

And the country’s accession to agreements such as the International Covenant on Civil and Political Rights must be taken seriously, he says, highlighting that much of the planned legal material on fundamental freedoms will be translated directly from the Covenant, though it normally functions as a “goal” or “yardstick”.

“There is a legal duty above Shari’ah,” the minister concludes, agreeing that in some senses the current reform process represents a “Westernisation” of Maldivian law.

But “we have married Shari’ah with international standards in our penal code,” he adds, arguing the process can be repeated elsewhere.

Opposition leaders have refused to take the new legislative agenda seriously, arguing that such major change could take years, and that the fresh constitution and upcoming elections mean it is the wrong time to plan an extensive reform agenda in detail. They also allege change has been slow in coming over the thirty years of the President’s rule.

But now “we seem to be pressed for time in Maldives,” says Nasheed, who has clearly taken his legal reform mandate – assigned in November – to heart.

By: Judith Evans

4 February 2008