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Penal code drafted by Prof. Paul Robinson and students is enacted in the Maldives

May 08, 2014

In the summer of 2004, the United Nations Development Programme (UNDP) enlisted Paul H. Robinson, the Colin S. Diver Professor of Law at Penn Law and Director of the Criminal Law Research Group, and a group of his students to draft a new penal code for the Maldives, a small island nation in the Indian Ocean, whose legal system has long been based on Islamic law.

That project took a giant step forward last month, when the Maldivian legislature, the People’s Majlis, enacted the code, the first modern, comprehensive penal code in the world to incorporate the major tenets and principles of Islamic law. Following a one-year implementation period, the new criminal law will take force in the Maldives in 2015.

Robinson and his students completed the drafting work and submitted a final report in 2006. The years it has taken for the Maldivian legislature to debate and enact the code is not surprising, according to Robinson. He notes that criminal justice reform anywhere requires sustained effort.

“Criminal codes are an enormous task for a legislature,” Robinson said. “They always take years. Our proposed draft actually identified for the lawmakers a series of issues on which we thought they needed to have a full debate, and our draft text provided alternative text language on these points and provided pro and con arguments, so they could see both sides of the issue.”

For instance, existing Maldivian law, on which the drafters relied as a principal source of authority, deviated from strict interpretations of Islamic Shari’a by not punishing theft with amputation of the offender’s hand, or apostasy with the death penalty.

Other conflicts with which the Maldivian lawmakers had to wrestle included disagreements over the age below which consensual intercourse should constitute a crime and  how to treat the situation in which persons of the opposite sex are found alone behind closed doors.

Robinson, who is one of the world’s leading criminal law scholars, is known for his support of the idea that criminal law should embody the values of the community it governs. In drafting the Maldivian code, he and his students consulted with Maldivian judges, prosecutors, private defense lawyers, government officials, and ordinary citizens to determine community values.

“We worked very hard to have the draft reflect the values of the Maldivian society, not Western values,” he said. “We had a good deal of Shari’a expertise on our drafting team, including Islamic scholars here at Penn. Our official commentary gave lots of cites to the traditional Islamic authorities, producing a highly persuasive case that the proposed code was not inconsistent with important Muslim doctrine.”

Since the code was enacted, Robinson has consulted with Maldivian Attorney General’s Office, the UNDP, and the official the Maldivians have hired to coordinate the implementation effort for all branches of government.

“They have a big job ahead of them,” he said. “There is little training or education among current lawyers and judges in dealing with a codification like this. It is not just legislative enactment that must be the goal, but rather transformation of the real world practice of criminal justice as it affects the everyday lives of Maldivians.”