Much has been said and written about how the Hadd, or the Shari'ah-prescribed punishment, for the crime of Fornication is only suitable f
or the 6th or 7th century Arabia.
But let's not get started arguing about the reason behind the criminalization of pre-marital sex, because that's one argument that is going to go in circles and will never end. I can argue that a personal freedom that threatens the very fabric of society should take a backseat to societal interests. You can argue that freedoms are absolute, although jurists, judges, and legal academicians will all tell you that granting absolute freedoms to any human being is not in the interest of justice. You can argue then that consensual sex between two people isn't detrimental to society: that every couple has to make sure whether or not they 'click' before they make a commitment, although sociologists will tell you having sex isn't the way to do it. That a couple living together happily provides just as much a sense of security to their children as a happily married couple can, although sociologists will most probably not agree with that argument either. So let's agree to disagree on that one.
or the 6th or 7th century Arabia.But let's not get started arguing about the reason behind the criminalization of pre-marital sex, because that's one argument that is going to go in circles and will never end. I can argue that a personal freedom that threatens the very fabric of society should take a backseat to societal interests. You can argue that freedoms are absolute, although jurists, judges, and legal academicians will all tell you that granting absolute freedoms to any human being is not in the interest of justice. You can argue then that consensual sex between two people isn't detrimental to society: that every couple has to make sure whether or not they 'click' before they make a commitment, although sociologists will tell you having sex isn't the way to do it. That a couple living together happily provides just as much a sense of security to their children as a happily married couple can, although sociologists will most probably not agree with that argument either. So let's agree to disagree on that one.
But I do believe that those people who claim that the substaintial law of the Hadd is in some way discriminatory against women are clearly misguided on the issue.
Their argument is based on statistics: in the year 2006, 146 out of 184 people sentenced to be punished by the Hadd of fornication in the Maldives were women. Now, without jumping to 'Aha!' take a step back and think: what does this really indicate? It simply indicates women leave more evidence after the crime; or to put it more precisely they have a greater probability of carrying evidence around with them than men do. Women get pregnant. Women confess more easily. Maybe, they have more conscience than men do about these things.
Speaking of evidence, the Maldivian legal system is NOT where you'd want to look for a proper evidencial system. Believe me, I've looked into the current Evidence Act. I know! It's more than 30 years old, and it's less than a page and a half long. No, we're not talking parchments here. We're talking A4 papers. I guess by now you know what I'm getting at. Vague areas. Lots of them. It'd be really great in a country where judicial precedent is applied, and judges are open-minded in their application of law. But in a country where most judges don't even have a degree, and High Court judges think that 'judicial independence' means that the Judicial Service Commission should only be chaired by people from within the judiciary, the current Evidence Act really sucks. And saying 'sucks' is putting it very lightly.
So going back to Hadd convictions, most women are convicted based on confessions, given after the birth of an illegitimate child. And the current Evidence Act doesn't provide any detailed provisions on the acceptance of confessions.
Under Islamic Law, the birth of an illegitimate child alone does not prove Fornication (the crime punishable with the Hadd). The reason is that Fornication, under Islamic law, is committed when a man's glans fully penetrates a woman's vagina. And it is a medically proven fact that a woman can get pregnant even without full sexual intercourse. Yeah, well, the chances are slim, but there's still a chance. But under Islamic law, the crime must be proved beyond a shred of doubt before the Hadd can be implemented. The other reason is that under Islamic law, as in all other modern laws, the lack of consent is a full defense in all crimes other than murder. If a woman were to plead the lack of consent in a Hadd crime, that in itself becomes a reason to doubt the commission of a crime. Again, under Islamic law, the crime must be proved beyond a shred of doubt before the Hadd can be implemented.
Going on to confessions, in most other countries, the accused, especially if unrepresented, is forewarned by the judge of the consequences of a confession. In the Maldives, the current 1-and-half page Evidence Act does not even touch on procedure for confessions.
This being the case, the case presented by those who call for the abolishment of the Hadd is based mainly on the fact that more women are sentenced than men. Of course, in reality this happens because women are under the impression that their pregnancy is conclusive proof of their actions and confess to having committed fornication, while men refuse to confess to commission of the act.
Muslim jurists have discussed procedural matters relating to confessions more than 1200 years ago. For example, in this case, when the woman claims in her confession that she committed the act of Fornication with a certain man, and that man denies the claims she has made, what are we to do? Imam Abu Hanifah holds the opinion that in this case, the woman cannot be sentenced to Hadd. The reason why he holds this opinion is that Fornication is a crime that can be committed by two people, a man and a woman. When the man denies having committed the act, it becomes as if the woman committed fornication all by herself, which of course doesn't make sense. Now there's a doubt. Go back to the doctrine of 'Proof beyond a shred of doubt' and the case against the woman comes down crumbling. All that can be proved against her based on her confession, and even her pregnancy, is that she was involved in immoral acts that put her in the situation. The government is not obliged to punish her with flogging in this case, but is free to legislate any punishment is sees fit. House arrest. Imprisonment. Any thing.
I do believe that although this is an opinion narrated from Imam Abu Hanifah alone, his argument does hold water, and is more in line with the standard of proof for Hadd crimes. Perhaps, it is time the Maldivian law adopted this position.
Now, one more important issue relating to Fornication convictions is that DNA tests today can show the paternity of any child. This being the case, how do men get off the hook so easily? Again, it is medically possible for a woman to be pregnant without a full intercourse. So, even if an illegitimate child is proved to be a certain man's child, that does not prove that the said man has committed Fornication with the woman. However, what must be noted is that while DNA test results cannot be used to prove Fornication against the man, or to establish the legal paternity of the child, DNA test results do prove the man's involvement with the woman in a sexual manner.
Why then does the Maldivian interrogation authorities and prosecuting authorities not use such evidence to convict the men involved in such crimes against society? Is it that we'd rather implement the Shariah without looking beyond the text?
A Maldivian diplomat to a European country, speaking in her personal capacity, stated that Maldives has never fully implemented the Shariah. She claimed that there was no necessity to implement the Shariah fully in this matter either. What she doesn't seem to know however is that what has led to the law being implemented in such a discriminatory manner against women is the fact that the Shariah has not been implemented fully even in this matter.
Perhaps it's easier for us to keep blaming God for our closemindedness. But don't you think it'd be more beneficial to us as a nation to take a step back, and take a look at ourselves?
Their argument is based on statistics: in the year 2006, 146 out of 184 people sentenced to be punished by the Hadd of fornication in the Maldives were women. Now, without jumping to 'Aha!' take a step back and think: what does this really indicate? It simply indicates women leave more evidence after the crime; or to put it more precisely they have a greater probability of carrying evidence around with them than men do. Women get pregnant. Women confess more easily. Maybe, they have more conscience than men do about these things.
Speaking of evidence, the Maldivian legal system is NOT where you'd want to look for a proper evidencial system. Believe me, I've looked into the current Evidence Act. I know! It's more than 30 years old, and it's less than a page and a half long. No, we're not talking parchments here. We're talking A4 papers. I guess by now you know what I'm getting at. Vague areas. Lots of them. It'd be really great in a country where judicial precedent is applied, and judges are open-minded in their application of law. But in a country where most judges don't even have a degree, and High Court judges think that 'judicial independence' means that the Judicial Service Commission should only be chaired by people from within the judiciary, the current Evidence Act really sucks. And saying 'sucks' is putting it very lightly.
So going back to Hadd convictions, most women are convicted based on confessions, given after the birth of an illegitimate child. And the current Evidence Act doesn't provide any detailed provisions on the acceptance of confessions.
Under Islamic Law, the birth of an illegitimate child alone does not prove Fornication (the crime punishable with the Hadd). The reason is that Fornication, under Islamic law, is committed when a man's glans fully penetrates a woman's vagina. And it is a medically proven fact that a woman can get pregnant even without full sexual intercourse. Yeah, well, the chances are slim, but there's still a chance. But under Islamic law, the crime must be proved beyond a shred of doubt before the Hadd can be implemented. The other reason is that under Islamic law, as in all other modern laws, the lack of consent is a full defense in all crimes other than murder. If a woman were to plead the lack of consent in a Hadd crime, that in itself becomes a reason to doubt the commission of a crime. Again, under Islamic law, the crime must be proved beyond a shred of doubt before the Hadd can be implemented.
Going on to confessions, in most other countries, the accused, especially if unrepresented, is forewarned by the judge of the consequences of a confession. In the Maldives, the current 1-and-half page Evidence Act does not even touch on procedure for confessions.
This being the case, the case presented by those who call for the abolishment of the Hadd is based mainly on the fact that more women are sentenced than men. Of course, in reality this happens because women are under the impression that their pregnancy is conclusive proof of their actions and confess to having committed fornication, while men refuse to confess to commission of the act.
Muslim jurists have discussed procedural matters relating to confessions more than 1200 years ago. For example, in this case, when the woman claims in her confession that she committed the act of Fornication with a certain man, and that man denies the claims she has made, what are we to do? Imam Abu Hanifah holds the opinion that in this case, the woman cannot be sentenced to Hadd. The reason why he holds this opinion is that Fornication is a crime that can be committed by two people, a man and a woman. When the man denies having committed the act, it becomes as if the woman committed fornication all by herself, which of course doesn't make sense. Now there's a doubt. Go back to the doctrine of 'Proof beyond a shred of doubt' and the case against the woman comes down crumbling. All that can be proved against her based on her confession, and even her pregnancy, is that she was involved in immoral acts that put her in the situation. The government is not obliged to punish her with flogging in this case, but is free to legislate any punishment is sees fit. House arrest. Imprisonment. Any thing.
I do believe that although this is an opinion narrated from Imam Abu Hanifah alone, his argument does hold water, and is more in line with the standard of proof for Hadd crimes. Perhaps, it is time the Maldivian law adopted this position.
Now, one more important issue relating to Fornication convictions is that DNA tests today can show the paternity of any child. This being the case, how do men get off the hook so easily? Again, it is medically possible for a woman to be pregnant without a full intercourse. So, even if an illegitimate child is proved to be a certain man's child, that does not prove that the said man has committed Fornication with the woman. However, what must be noted is that while DNA test results cannot be used to prove Fornication against the man, or to establish the legal paternity of the child, DNA test results do prove the man's involvement with the woman in a sexual manner.
Why then does the Maldivian interrogation authorities and prosecuting authorities not use such evidence to convict the men involved in such crimes against society? Is it that we'd rather implement the Shariah without looking beyond the text?
A Maldivian diplomat to a European country, speaking in her personal capacity, stated that Maldives has never fully implemented the Shariah. She claimed that there was no necessity to implement the Shariah fully in this matter either. What she doesn't seem to know however is that what has led to the law being implemented in such a discriminatory manner against women is the fact that the Shariah has not been implemented fully even in this matter.
Perhaps it's easier for us to keep blaming God for our closemindedness. But don't you think it'd be more beneficial to us as a nation to take a step back, and take a look at ourselves?
