By Mass L. Usuf –

Mass L. Usuf

Remember the revulsion and disgust with which our society reacted to the gruesome murder of that angel ‘Seya’ last September. Suggestions for the punishment of the accused at that time ranged from decapitation, to killing by torture, to stoning to death like in the Middle East. The rage was all over their faces and the revengeful fury of the public expressed in their loud voices.

Today, we are concerned about the sentence to death by stoning or lapidation of a Sri Lankan woman in Saudi Arabia. The crime, Adultery. Adultery or zina (in Arabic) is sexual intercourse between a man and a woman not married to each other. This can be classified as illegal sexual intercourse between two married persons or two unmarried persons (fornication) or one of them married and the other unmarried. Note the distinction between adultery and fornication. The married person, male or female will face the death penalty if proven.

An allegation leveled at the Sharia law is that the woman is sentenced to death and the man only sentenced to be flogged. This allegation is false as there is a distinction between adultery and fornication. For example in the present case if the woman was unmarried and the man married, then the man would have been awarded the death penalty. It must be stated that the evidential burden, explained below, to sentence a person to death for adultery is extremely high and very, very difficult to prove.

Like fishing in trouble waters, it would be grossly immoral for anyone to subtly capitalise these sensitive moments and sinisterly condemn Islam as having a barbaric penal system, as an archaic religion and so on. Each of these allegations can be rationally, scientifically and convincingly explained but this is not the place and time for this. Our focus now is to save the life of this woman. To do this we need to have an understanding of the law relating to the matter and I hope the thoughts below will be seen by the relevant people.

Perspective

In Islam, adultery is considered a great sin. It further opens the gate for many other social evils. The Kegalle High Court in December 2013 sentenced a woman and a man to death. The woman who had an extra marital affair conspired with her lover and had murdered her husband. The body was dumped in a toilet pit.

We have seen even in Sri Lanka, how it severely affects the family structure leading to quarrels, suspicion, disoriented children and even murder. Finally, the destruction of the family. It impacts on the laws of property, ruins the reputation of both parties, the dignity of the children and facilitates the spread of sexually transmitted diseases. It also dents the moral psychology of the persons.

In this month of December the Police Media Unit reported the killing of a 35-year-old woman and injury to her nine-year-old daughter, after being attacked by a mammoty in Dehiattakandiya. Investigations reveal that an extramarital relationship has been the cause of the murder.

In October this year, dramatic footage aired on television channels (also on YouTube) showed Ramu Chavan, a 60-year-old man walking the streets of the Pune city in India with the severed head of his wife, whom he allegedly beheaded with an axe because of her infidelity. He killed his wife Sonubai because he suspected she was having an affair with her son-in-law.

Law of Evidence

Under the Sharia law, it is almost impossible to satisfy the high level of evidential burden for a person to be found guilty of adultery. Witness evidence is crucial and the character of the witnesses is also significant. Under any other legal system an alcoholic, an adulterer, a convicted rapist etc. can give evidence as a witness. Under the Islamic law for adultery, there needs to be four qualified witnesses. The witnesses have to be pious, honest and truthful people without any blemish. For example, those who do not offer their prayer will not be accepted as a witness in this instance. Moreover, all these four witnesses should have physically seen with their own eyes the act of penetration into the vagina of the woman. Even if the man and woman have been seen lying completely naked on the bed, or hugging each other or kissing the evidence is not sufficient to be sentenced to death by stoning. The implication of this type of witness evidence is that no pious man will ever be present witnessing a situation like this. And, it is not one pious man; it has to be four such pious men.

Quadruple Confessions

There are two ways by which the crime of adultery can be proven one is by leading evidence or by the admission of proof of voluntary confession. The evidential process with regard to witnesses has been described above. In relation to confession, the criminal law procedure has set out the process for it. The confessant must repeat the confession four times at four different occasions and at four different appearances in the presence of the judge. This is to clearly make the accused know and appreciate what he or she is confessing about.

In the case of this Sri Lankan woman, according to reports she had confessed to have committed the crime. When an accused confesses to the crime then it becomes admissible proof. The judge has no option and it becomes legally mandatory on him to find that person guilty and pass the sentence relevant to that offence. What this woman has done is tied the hands of the judicial system and the judge himself. Under hadd law, no judge has the power to increase or diminish the sentence. In crimes of hudud there is no room for intercession or amnesty. Not by the judge, nor the Head of the State not by anyone.

Possible way out

There are provisions for the court to consider certain circumstances in order to suspend, reduce (ta’zir) or defer (for instance, in case of pregnancy) the hudud punishment. The legal chances of her avoiding the death penalty in my view can be based, inter alia on two premises:

Firstly, she can retract her confession. ‘Confession’ in law of criminal evidence is a statement by a suspect in crime that he/she did, in fact, commit the crime. This is an inculpatory form of evidence. Admissibility of this type of evidence as proof is subject to stringent rules. If she had been under duress or coerced into making a confession she can highlight such circumstances. Confession under duress or coercion has no legal effect. In fact, under the hudud laws, this right is given to the accused i.e. the right to retract her confession any time before the sentence is executed. A retraction would nullify her earlier confession as being false. Retraction of a confession does not entail criminal liability. Under hudud law even if circumstantial evidence points otherwise the confession shall be held null and void if it had not been done with freewill. The accused can retract her confession before or depending on the circumstances even during the infliction of the punishment.

Secondly, she can create doubt or uncertainty (Shubhat) on the investigative process. Her lawyers may examine if pre-trial interrogation was done according to the law without harassment, obtention of information without deceit, soliciting of a confession with false promises. Did she have the privilege of being represented by counsel during pre-trial interrogation, at the trial, and at the time of conviction? An individual who lodges a charge of adultery but fails to present four eyewitnesses is subject to the Hudud offense of defamation (Qazhf), punishable by eighty lashes. It is clear that in the present case there are no witnesses. The possibility of the accused being coaxed into admitting guilt or deceived to confess with promises cannot be eliminated. If she can raise these doubts, chances are that they may be given due consideration. All these safeguards in the sharia law are to ensure and doubly ensure that the accused is guilty beyond any doubt before the hadd punishment is administered.

‘Nehe Kiyanne’

Other factors like the language barrier and ineffective translation can be raised; Misrepresentation if any, of the law and legal process; been given misleading direction by the prosecution. Under conditions of uncertainty the judge has the space to move away from the hudud punishment and consider a lesser form of punishment. I can recollect an old incident told to me by a Sri Lankan who was working as a Court translator in a certain country (name withheld). In a case where the charge of adultery was being examined, the judge had questioned the accused woman in Arabic language, “Was there vaginal penetration?” This Translator had translated the judge’s question into Sinhala and then also had told her to say, “Nehe kiyanne” (say no)”. I told him that you have been dishonest. He replied, saying that in the case of Hadd crimes according to juristic opinion is okay. Jurists state to ‘seek a pretext to prevent punishment according to your ability”. This is in case of confession only.

However, if the accused wants to spiritually purify the self from the sin of adultery he/she may confess and go through the punishment. From our Sri Lankan woman’s perspective, she is now publicly known to have committed adultery even if she wants to retract she may not do so because after doing time for the lesser punishment she has to come back to Sri Lanka. She may think of her reputation, her dignity, and her interaction with her husband, children, parents, relations, neighbours. She may feel better off facing the sentence and cleansing herself from the sin she has committed. It is her discretion to retract on the confession or not.