ABSTRACT
The United Nations Development Programme and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country’s first system of codified penal law and sentencing guidelines. This article describes the special challenges and opportunities encountered while drafting a penal code based on shari’a (Islamic law). Such comprehensive codification is likely to bring more dramatic improvements in the quality of justice there than in many other societies, owing in large part to the problems of assuring fair notice and fair adjudication in the uncodified shari’a-based system in present use. Challenges faced by the project team included a particular need for clarity and simplicity presented by the relative lack of codification experience and training in the islands. However, this lack of experience and codification tradition also had unexpected advantages in that it gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.
While it was a concern that any shari’a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the shari’a rule could be maintained without violating international norms. In the end, this shari’a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.
Moreover, the code drafting project may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here were used to solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute’s Model Penal Code, which served as the model for most American penal codes. Codifying Shari’a 110The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offences, combination offences, and penal code-integrated sentencing guidelines have all been addressed.
