Section: Judiciary

Death by popular demand

deathpenalty

by Mushfique Mohamed

The death penalty breeds injustice. It is most often imposed on  the persecuted or the underprivileged. As the civilised majority increases its commitments to abolish it, some countries have spiked up executions. This includes states that have resumed the death penalty after discontinuing long-standing moratoriums.  Apart from far-reaching authoritarianism, there doesn’t seem to be a common thread linking these countries together.

What are the factors propelling a minority of the world’s countries to resume capital punishment and proliferate executions? Is the motivation behind implementation of the death penalty really a matter of public safety? Or is it motivated by the religious duty of leaders, as it is zealously claimed by politicians in Islamic countries?

In 2015 half of all death sentences were carried out in Asia. Excluding China, almost all executions were carried out in Muslim-majority countries — Iran, Pakistan, and Saudi Arabia. On the other side of the death penalty discourse, 145 countries—74% of the world—joined the list of countries that are either abolitionist in practice or law. Despite the repeated fact: ‘there is no cogent evidence to show that the death penalty is a more effective detriment to crime than long-term imprisonment’, people from various backgrounds casually support it. The only difference is that most people in the developed world would not say it out loud at the risk of not being taken seriously.

Arguments that favour the death penalty wouldn’t stand in any informed discussion on the subject. The possibilities of wrongful convictions, botched executions, severe mental illnesses of defendants, or mitigating factors that could disprove guilt after sentencing are plausible enough to fully reject the idea of State sanctioned death as a punishment.

Religious vigilantism has killed yet another open-minded and humorous pioneer of blogging and political satire in the Maldives, Yameen Rasheed was brutally stabbed 34 times in the stairwell of his home. The Government’s narrative has not been one of condemning all forms of violence and hate. The official party line is: ‘be careful of your words, it could get you killed’,  while the list of unsolved political violence continues to guarantee impunity for the usual suspects.

Populism on the rise

The Islamist death penalty rhetoric that was at the tip of Maldives’ president Abdullah Yameen’s tongue at the beginning of his presidency fizzled out late last year. It didn’t even take 24 hours for the Government to capitalise on the slain blogger’s shocking death. At a time when Rasheed’s family and friends were forced to feel a horrific sense of déjà vu over his friend Ahmed Rilwan’s forced disappearance in August 2014, President Yameen callously justified the death penalty through the murder of one of its most vocal critics. Stating in no uncertain terms that the President would issue death warrants within “two-to-three months”.

At home he’s the Trump-esque, triumphantly chauvinistic president who ‘has guts’. According to President Yameen, he is ready to start executions, not because he ‘wants to’, but for the ‘betterment of Maldivian society’. We, as Maldivians, are to feel grateful that we have a president who is incongruous with the times. It’s his assertion that executions are to resume in the Maldives because he is in touch with what the people want. In terms of public support for capital punishment, he may not be far off the mark.

But, to what extent is this thirst for blood manufactured? Is the call for the death penalty really following judicial precedents, or is it a sign of a justice system that revolves around the whims of political leaders?

In 2013 Pakistan reversed its moratorium on the death penalty for convicted terrorists. The following year the Maldivian government did the same for murder convicts. In many Muslim-majority countries, violent groups are already taking the law into their own hands. Whether it’s vigilante groups in Bangladesh hacking secularists to death, or radicalised gangs in the Maldives policing religiosity.  In these South Asian countries there is a huge conflation of ‘secularism’ with not just atheism, but antitheism too. Why are these countries increasingly re-interpreting Islam in a way that promotes medieval practices over positivist Islamic jurisprudence?

In Urdu, Dhivehi, Bengali and other South Asian languages, Islamists explain—online or through religious literature, radio and television—how harsh punishments are endorsed under religious discourse. Most of its members are not your average Muslims but usually tend to be ‘born-again Muslims’ or the newly converted. There are websites solely dedicated to naming and shaming those that actively counter Salafi-Jihadism. The dirty work is then left to radicalised violent criminals who seek repentance for their delinquent past through violence against those that enervate their ‘holy’ death-cult ideology.

Although Maldives’ moratorium on the death penalty was only lifted for murder, the penal code prescribes death for blasphemy. Fundamentalist ‘Islamic scholars’ are already calling for the beheading of Maldivian secularists. By resuming public torture as a punishment, South Asian governments like Yameen’s are either attempting to get a handle on these religiously extreme violent groups, or doing their very best to boost their Islamist credentials. Given the moderate, culturally synchretic, and state-controlled Maldivian Islam in the past, majority of Maldivians today are convinced that Salafist Islam is the “true” version of Islam. Therefore the religious nationalism in these countries are becoming equally intolerant and insular. What are the global forces that promote regressive punishments over rehabilitation or life imprisonment?

The resumption of the death penalty in the Maldives coincides with increasing cultural, religious, economic and military ties with Saudi Arabia. While Pakistan has Iran to offset over-reliance on Saudi Arabia, it is a different story in the Maldives where the change from democratic transition to authoritarian reversal is in full swing. It might be convenient to point out that money from the oil-rich Arabian Peninsular is circulating all over the world. However, the hegemonic effects it can have on a small developing country differ greatly.

Manufacturing support

Soaring crime rates have created a public that’s willing to accept anything as the ‘right’ solution. Feeding off a panicked public, the currently embattled Maldivian president is ready to implement the death penalty for the first time since 1953. Ineffective governments use the death penalty to give the public the appearance of justice being served, although our judiciary ‘regularly dispenses injustice’.

Increase in violent crime is a result of sudden frenetic development that has interrupted the slow-paced and unpretentious island life but failed to meaningfully mobilise the youth with opportunities. In Maldives, it’s also a sign of increasing links between criminal gangs, politicians, and police that protect them. This new reality of life in urbanized islands was effectively used to convince the public that killing to stop killing is the only solution.

The idea that the ‘authentic’ version of Islam is strict and vengeful has been implanted in young minds through the education system. The Ministry of Islamic Affairs and its tacit support to those religious scholars that either call to or incite violence against liberals formalize these ideas. The old non-violent Maldivian way of life has been buried – violence is our culture now, and it’s suggested that we need more violence to revive our peaceful way of life.

Old habits

The death penalty exposes historic flaws in our justice systems. Politicised police forces in South Asia rely heavily on forced confessions to prevent public disillusionment of policing. Reports of a confession can also give the impression there’s very little debate over guilt of suspects.

There was virtually no violent crime in the Maldives until the 1990s, before urbanisation stunned Malé and facilitated the emergence of criminal gangs. Things couldn’t be more different today. We know that even for a small country our judicial system is plagued with a backlog of cases and in completely unfamiliar territory. It is easy to bend rules and eliminate rivals through rushed trials. For instance, Pakistan regularly abuses anti-terror laws and uses kangaroo courts to suspend fundamental rights and convict defendants. Our laws are designed to be open-ended and vague – the bigger the fishing net, the bigger the catch. These flimsy legal definitions and forever-morphing parameters of the law can be further widened through abuse of judicial discretion. Our justice systems refuse to abide by human rights and values of democracy.

Such populist South Asian leaders can count on contrived investigations to secure themselves and their allies. Any lines of inquiry that incriminates politicians or business tycoons go cold.  An accomplice, usually a young offender belonging to a gang, is sacrificed to appease the public’s call for justice. The big kahunas that fund or plan such atrocities are never implicated during investigations or criminal proceedings. As long as a delinquent takes the fall, politicians or leaders of criminal syndicates evade due course of the law.

Before the Salafi-Jihadist propaganda that followed the Indian Ocean tsunami, religious radicalism and fundamentalism were at the fringes of Maldivian society. Now, it’s mainstream to the point where those who don’t adopt Salafist views are seen as lesser Muslims co-opted by Western influence. These new threats create new forms of desperation. While stepping up sharia rhetoric, the government is ignoring how this will affect Maldivians in the long-term. And why not, when it’s an efficient cover for the executive’s incompetence? It diverts the public’s attention to narratives of ‘lack of faith’ equal to ‘deteriorating social fabric’ while more pressing issues like grand corruption, climate change, and political violence become incoherent background noise.

Not in our name

In reality, Islamic countries implementing the death penalty don’t seek justice. Instead they use quick fixes that pull the wool over the public’s collective eyes. State sanctioned killing is a dramatic diversion from an ineffective criminal justice system; it provides a spectacle—medieval, yes—but satisfying to Islamist publics of today. It is also  a useful tool for regressive regimes seeking to hide deeply embedded incompetency in policing and administering justice. In most South Asian countries, it is a misguided coping mechanism for asphyxiated criminal justice systems.

What about open democracies that execute convicts? The US is the only G7 country that still carries out executions. In 1982, Texas became the first jurisdiction to use lethal injection for its executions.  This is supposedly the humane way for a state to kill convicts. Everyone knows that violent crime still takes place in Texas, and the prospect of a lethal injection doesn’t deter most violent criminals. Such perpetrators are often mentally ill and seek publicity for their crimes. In recent years many American anti-death penalty campaigners have observed ‘an all-time low’ in death sentences and executions. Despite this, many in the developing world point to the  US in response to accusations of death penalty being anti-democratic by nature. We still glorify capital punishment for our superficial and selfish satisfaction even though judiciaries are ridden with disrepute. We believe that seeing the government essentially kill killers, makes us safer in our homes, in our communities.

The death penalty satisfies some sort of voyeuristic revenge complex we might have as humans, but it has very little to do with the murder victims’ family and friends, or the need to establish justice for their lost loved ones. Murder cases can drag on for years, exacerbating the victims’ families’ trauma. At times, calls for death cloud their calls for reprieve. It is unusual that we as the public seek retaliation for crimes from which we haven’t suffered as a consequence.

It doesn’t make us empathetic to appropriate the feelings of the victim’s family and endorse our corrupt governments to kill criminals, when our views are mostly based on incipient media reports; or conjecture arising from it. It makes us a society that is starved for justice to the point where we ignore systematic judicial corruption, and are willing to be satisfied with even the false veneer of justice. A killing spree is a killing spree, whether it’s state-sanctioned or the actions of a fanatic.


About the author: Mushfique Mohamed is a human rights lawyer. He has an LLB (Hons) Law and MSc(Econs) in Postcolonial Politics from Aberystwyth University.

Image: Zee News

 

Maldives state ready to kill Humam, and a way of life

HumamDeath

by Azra Naseem

In the early hours of the morning on the 19th day of Ramadan, as most of the country slept, the Maldives Supreme Court upheld the verdict by lower courts to kill Hussein Humam Ahmed. The 22-year-old man was convicted of killing MP Dr Afrasheem Ali on 2 October 2012 in a trial laden with irregularities.

Regulations introduced recently say the sentence must be carried out within 30 days. Umar Naseer, Home Minister until a sudden resignation on Tuesday this week, has said the State is now ready to kill by hanging - the only thing missing was someone’s neck to put the noose around and squeeze the life out of. The Supreme Court delivered that last night in the shape of Humam.

Humam’s killing will be the first in the Maldives since 1953, even then a rare thing. Moroccan traveller Ibn Batuta wrote of the Maldives in the 14th Century:

The inhabitants of the Maldive islands are honest and pious people, sincere in good faith and of a strong will…In body they are weak and have no aptitude for combat or for war, and their arms their prayers. One day in this country, I ordered the right hand of a robber to be cut off; upon which many of the natives in the hall of audience fainted away.

Today’s Maldives could not be more different. Crime is rife. Murders are commonplace. Stabbings are almost a daily occurrence. Robbery is regular. Corruption is widespread. Deception is natural. Violence is culture.

Something has gone seriously awry with the society’s moral compass.

Dr Afrasheem’s murder was one of the most brutal and violent the country had ever seen. Afrasheem left behind young children, a wife, parents, siblings. They all deserve justice, like everyone else. But there’s too much doubt about whether or not Humam is his killer. Afrasheem’s murder was a contract killing, that much everyone agrees on. Did Humam do it? If he did, who gave the orders? His conviction is based on confessions, retracted as many times as they were given. The legal apparatus will not let a psychiatrist judge his state of mind despite an insanity plea.

And, too many people—Umar Naseer, former Commissioner of Police and current JP MP Abdulla Riyaz, former police and military intelligence officers to indicate just a few—have pointed fingers at people other than Humam, ranging from the very top of government and various political parties to religious extremists, for this verdict to sit well with any right thinking member of society. Today all of them are holding their tongues as Humam is readied for the noose.

The Supreme Court’s decision is political. And so is Afrasheem’s murder said to be.

Many offer informed speculation that the MP could have been murdered for his seat in parliament or for his intentions to contest in then forthcoming presidential elections. He would have given other members of his party a run for their money. He was a popular man. Some reports say there was involvement of radicalised religious elements in Afrasheem’s murder – but, even if so, not without a political connection.

The Supreme Court is controlled by the very same people interested in hiding who really killed Afrasheem, if the informed speculation is based on truth. The court has long since placed itself above the law, ensconced inside the pockets of political leaders. As those awake waited tensely for the ruling on Humam last night–which came over three hours later than billed–the court issued a press release warning potential critics of serious repercussions if they openly disagreed with the court’s rulings.

The Supreme Court’s decision is political in another way. It panders to the strict Salafi clerics and their philosophy of ‘progression through regression’ that now dominate Maldives society. It caters to their demands for a legal system in the Maldives based on Sharia alone. This is a demand expressed by the whole spectrum of Salafis in the Maldives from the apolitical to the radicals and the violent ‘Jihadists’ who have emigrated to SyriaThe Supreme Court decision will appease them.

It also panders to the overlords who facilitate, finance and continue to groom Maldivian Muslims to become Salafis: Saudi Arabia.

The noose around Humam’s neck will put an end to not just his life but to two problems the government encounters: rumours of President Yameen’s involvement in Afrasheem’s murder that just won’t die; and accusations that it is not following the path of ‘true Islam’, i.e, Saudi-led Salafi Islam.

There is still a significant part of Maldivian society today, like me, horrified by the Supreme Court decision which ignored even the last-minute pleas by the murdered victim’s family for a temporary reprieve. Without the Sharia concept of Qisas, which is what the entire case is based on, was lost. Yet the Supreme Court went ahead, making a mockery even of Sharia.

We should understand this verdict is a harbinger of things to come: a society characterised by injustice, faux piety, and appeasement of the radical. There was a time when none of us could have imagined life in Maldives dominated by strict Salafi ideology. Today it is a lived truth. Tomorrow seems likely to be totally ruled by it.

At death’s door is not just Humam, but what is left of the long-lived Maldivian identity as a peace-loving non-violent society of Muslims who practise their religion without committing violence and human rights abuses in its name.


Correction: This article previously said “When the Sharia concept of Qisas became unavailable, the court opted for Ta’zir.” This was not the case. The bench simply chose to ignore plea by Dr Afrasheem’s family for a temporary reprieve, and went ahead with the ruling, flouting the concept of Qisas.

Photo: Humam being brought to court, Raajje.mv

Are we all going to kill Humaam?

by Shahindha Ismail

Mamma, how can you kill a man to show the world that killing is unacceptable?

This is what my 14 year old daughter asked me today. I am so grateful that there is still so much innocence and, so, hope for new generations to come. It is as simple as she put it.

Although the penalty existed, a 62 year unofficial moratorium on the death penalty in the Maldives was lifted in 2014 with the enforcement of the Regulation on the Implementation of the Death Penalty. We now have a list of 17 people on death row since 2008, and a few of them sentenced as minors. The government of Maldives has in the past year justified MVR 4 million (US$ 261,547) to build a death chamber at the prison island. After having tried and failed to procure the serum for lethal injection, the government has quickly fixed this problem, choosing instead to implement the sentence by hanging until dead.

Out of the death row inmates, 23 year old Hussain Humaam has his case at the Supreme Court at present. Although not the first to be sentenced to death, he would be the first to be confirmed, if not acquitted by the Supreme Court. While all the death sentences were passed based primarily on confessions rather than evidence, what is most interesting in Humaam’s case is that his sentence is based on a statement given out of trial, during a remand hearing. It is also one of three different statements, contradicting each other, that he gave at the Criminal Court of Maldives. Let us not even go into the legitimacy of these statements when Islamic Shari’a and the law both require proof beyond any doubt as opposed to reasonable doubt, in the case of an accusation of murder. Article 52 of the Constitution states that a statement given in police custody, if contradicted at trial, cannot be used to convict the defendant.

Humaam is a notorious delinquent since childhood; a boy who was involved in all types of crimes from theft to street fights to stabbing, and now murder. Is this why many of us have turned a blind eye to what is going on with this young man who the State will very likely put to death, despite the many flaws in the judicial process? Penalties should absolutely apply to offenders, and it is also in the interest of the society. However it is not in the interest of anyone when the law is twisted far enough to take the life of an individual without due process. Neither the process nor the interpretations used conform to best practice or our international obligations.

An individual is part of the society. It is all these individuals, including the businessmen and women, the lawyers, the judges, mothers, fathers, our children and yes, the criminals and delinquents who make up a society. The Criminal Court deemed it necessary that a death sentence be passed on Humaam “in the interest of the harmony of the society” despite that fact that Islamic Shari’a requires ALL of the victim’s heirs to ask for it. The victim in this case left behind two children who are still minors, unable to state their wish until they turn eighteen. The Criminal Court deemed it necessary to not wait for these children to turn eighteen, as the Maalikee sect in Islam prescribes in such cases.

I wonder why there is such an urgency to take this young man’s life. Furthermore, why would the court use Maalikee sect when the general principle in criminal law is that in a situation of conflict of law or principle, whichever law that is most lenient to the defendant should be used. This has also been the practice in the Maldives in many cases – yet we do not see this principle followed in the case of Humaam, and upholding this death sentence by the Criminal Court seem to have become crucial at many levels.

I also wonder how many of us think about the gravity of this problem, with the State killing a man through a process that has breached the principles of Islamic Shari’a, common law, international obligations and even common sense. All of us who righteously speak of injustices, of a flawed justice system, inequalities, protection, prevention and so forth. Why do we not raise our voices against this atrocity? I cannot believe that we have failed the morality and values that our ancestors, and Islam itself, have left in us. It does not matter whether Humaam was ‘a good boy’. What matters is whether justice has been served, whether due process has been observed. Whether we treated Humaam fairly enough, such that if someone of our own (family) was accused of the same crime, we would have treated that person the same way.

Humaam’s lawyer, Usthaz Haseen, raised the question of Humaam’s mental condition at the Criminal Court, citing family statements that Humaam has had episodes where he was not mentally fit.   What was the court’s response? That a claim for insanity could not be accepted since Humaam had previously faced many charges and never once claimed insanity till now. Dear court, there is no time set in stone as to when a man can lose his mind.

The court also said that Humaam’s lawyer could not prove to the court that Humaam had a psychiatric problem. That is right. Humaam’s lawyer could not because he is a lawyer. Not a psychiatrist. The court then decided that Humaam was of sound mind. The court itself, not a psychiatrist. The next question is whether Humaam’s defense attempted to ascertain his frame of mind. Humaam was arrested on the night of October 20, 2012 and was in police custody until he was sentenced. Any medical or psychiatric evaluation that was conducted on him, was conducted by the police, by a medical professional of their choice. None of the medical records are shared with family. As with every person who is under police custody in the Maldives, no one will believe what those documents say, and insist on an evaluation by an independent medical professional or one of their choosing. Then again, it would be far-fetched to expect the judiciary or the state to provide an evaluation of Humaam by a psychiatrist that the family is happy with, and also for it to allow the family to have access to the medical reports.

In the case of Ford vs Wainwright in Florida (1974), the United States Supreme Court allowed for a review to clarify, among other issues, whether the district court should have held a hearing on Ford’s claim of insanity. The court “found that three problems with the procedures followed in Ford’s case: he had no chance to provide evidence relevant to his sanity, he was denied the opportunity to ‘challenge or impeach the state-appointed psychiatrists’ opinions,’ and the procedure placed the ultimate decision wholly within the executive branch. The Court found that Florida’s inadequate procedure denied Ford his constitutional right to due process. Accordingly, Ford was entitled to a new evidentiary hearing in federal district court on the question of his competence to be executed” writes Capital Punishment in Context, a resource platform for cases involving capital punishment.

The report of the Criminal Court repeatedly refers to the fact that Humaam was not consistent in what he said at the hearings. The court could not rely on his statements alone, so they rely on statements made by others. In legal jargon, hearsay. It also refers to Humaam’s self-proclamation that he had previously been involved in several heinous crimes. Again, it is a general principle in criminal law that, an assumption cannot be made for culpability based on the fact that one had previously committed a crime. Begging once again the question why the court could have declared him of sound mind then. Is it not natural for one to think the young man must be quite mad to be admitting to all these crimes when at the same time he is denying similar charges? Humaam has since attempted to end his own life and to harm himself in prison several times, at times requiring minor surgery. He speaks of a man in white entering the solitary confinement cell he has lived in for the past three years, of voices he hears deep into the night and of nightmares. The case screams for a psychiatric evaluation, yet none of the authorities or courts have had the decency to speak of it. Does the law allow for an insane man to be executed? Does Islam allow for it? I believe not.

Will the Supreme Court allow for an independent evaluation of Humaam’s mental condition? In the case of Abdul Awkal in Ohio (2012), the Supreme Court indefinitely stayed his execution based on the county court’s ruling that Awkal was mentally incompetent for execution following a mental competency hearing. In the case of Robert James Acremant in Oregon (2011), a death sentence was commuted to life imprisonment without parole with the exception of new evidence showing Acrament feigned mental illness. In the case of Isaac Jackson Stroud in California (2011), his sentence was commuted to life imprisonment without parole based on an incurable mental disorder. The list goes on. It depends on whether the Supreme Court will consider the reality of mental illness in the case of violent offenders. It also makes me cringe at the state of rehabilitation and care available for the mentally ill in the Maldives.

A bigger question for me is, will our society allow for an independent evaluation of Humaam’s mental condition? Are we, as a society, not satisfied enough to try and rehabilitate the outcasts within us? Or are we as a society too, hungry to take this man’s life, any life, believing that it will right the wrongs? Will we kill and do away with a chunk of our society to call it clean?

Killing a man will not bring back the dead. It will not prevent anyone else from killing again – for if it were a deterrent, then the world will have stopped murdering people for hundreds of years now. More cases of death sentences have been scheduled at the High Court as we read this. The rush at which a State will go for an individual’s life is no worse than hearing of a gang of thugs planning to kill a man.

One simple question. Prophet Mohamed SAW says, our Eeman will not be complete until we want that which we want for ourselves, for our brothers too. If Humaam was your own brother, would you believe that the court system is fair enough to warrant the taking of his life? Would we believe that the process he has gone through was fair enough?

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Related link: Dhivehi translation of Tariq Ramadan’s International Call for Moratorium on Corporal Punishment In the Islamic World


About the author: Shahindha Ismail is the Executive Director at Maldivian Democracy Network. Shahindha has been working in fields related to human rights for ten years, and is the co-author of the MDN publication: Asaasee Haqquthakaai Minivankan [Fundamental Rights and Freedoms]. She has also contributed several articles and reports to human rights journals. She is a keen runner, and is married with one daughter. 

Photo: Humaam’s family hugs him as he is brought to court, VMedia