Interpretation of international human rights norms and standards under Islamic theocratic constitutions: the Maldivian case

Abstract

Islam and human rights have always been a contentious topic that attracts diverse opinions. To this end, there is a bulk of research conducted on the role of Islam or Shariah – which are sources of law in the constitution and laws of several Muslim-majority countries – resulting in tensions between the domestic law of these countries and international human rights norms and standards. These studies have also suggested possible methods to harmonise the tensions. Yet, there is no such literature on the Maldives, one of the two entirely Islamic countries, where Islam is one of the fundamental sources of law. This thesis is intended to fill this gap, conducting empirical research on the judicial use of shariah and international human rights norms and standards in the Maldivian human rights adjudication. It examines the legal basis of Islam, shariah, tenets of Islam, international human rights law, and comparative law in the Maldivian legal system, analysing the relevant laws and jurisprudence. This research has demonstrated that the Maldivian courts are not reluctant to use international human rights instruments and comparative law in interpreting the Bill of Rights in the Constitution, however there is no consistency in the application. Another important finding is that the courts have relied on Islamic Shariah with general notions which caused irreconcilable tensions, and the jurisprudence lack the subjective reasoning for the use of shariah and international and comparative sources. To overcome this, this thesis proposes to interpret the restrictions based on Islamic Shariah or tenets of Islam through a maqāṣid-cumcontextual ijtihad approach taking maqāṣid al-sharīʻah (the higher objectives and intents of Islamic Shariah), which includes the notions of human dignity, equality and freedom, as a yardstick. As one of the aims of this research, this thesis formulated a guideline for the use of international human rights norms and standards more cautiously, but consistently and accurately. Furthermore, this thesis developed model Islamic constitutional clauses that would be useful for constitution-making and interpretation of fundamental rights and freedoms in Islamic jurisdictions.