The Supreme Court has issued an order invalidating the decision of Parliament’s Independent Institutions Oversight Committee to not recognise the legitimacy of the Hulhumale’ Magistrate Court.
Former President Mohamed Nasheed is currently facing charges in the Hulhumale Court for the detention of Chief Judge Abdulla Mohamed during the final days of his administration.
The oversight committee this week declared the court illegitimate, claiming it lacked “constitutional and legal grounds” to support its legitimacy.
In an order, (No. 2012/SC-SJ/05) issued on November 28, the Supreme Court declared that no institution should meddle with the business of the courts, claiming that it held parental authority over “constitutional and legal affairs” and would not allow such “interference” to take place.
“Any action or a decision taken by an institution of the state that may impact the outcome of a matter that is being heard in a court of law, and prior to a decision by the courts on that matter, shall be deemed invalid, and [the Supreme Court] hereby orders that these acts must not be carried out,” the order read.
Though the order did not specifically mention the decision by the parliamentary oversight committee, it was issued shortly after the committee’s decision regarding the Hulhumale’ court.
Last Tuesday, the Independent Institutions Oversight Committee,following an issue presented by three sitting MPs, declared there were no “legal grounds” to accept the setting up and functioning of Hulhumale’ Magistrate Court based on the powers vested to the Judicial Service Commission (JSC) under article 159 of the constitution and article 21 of the Judicial Service Commission Act, and based on the articles 53 and 63 of Judicature Act.
The members of the committee claimed there was a lack of any legal reasoning to recommence the works of the concerned court after its work had been suspended for five months after the Judicature Act came to force.
Article 63 of the Judicature Act states: “A Magistrate Court shall be established in all inhabited islands with the exception of Male’ where there are the four superior courts created in accordance with Article 53(b) of this Act and in an island where 4 divisions of these four superior courts are established in accordance with Article 53 (c) of this Act.”
However, the Independent Institutions Oversight Committee in its explanation of the decision stated that the exception of Male’ in the stated article included Hulhumale’, which for administrative purposes is considered a ward of the capital. The committee argued Hulhumale’ could not be deemed as a separate island to establish a magistrate court.
No one should meddle with the courts: Supreme Court
In quashing the parliamentary committee’s decision, the Supreme Court stated that while the Maldivian constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.
“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.
The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.
“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.
Not meddling with business of courts – Deputy Chair of Independent Institutions Oversight Committee
Speaking to Minivan News, Deputy Chair of Independent Institutions Oversight Committee MP Ahmed Sameer said the committee was not meddling with the business of the courts, but addressing a constitutional violation carried out by the JSC in establishing an illegitimate court.
Sameer – who is also the deputy leader of Maldivian Democratic Party (MDP) parliamentary group – stated that it was a responsibility of the parliament to hold independent institutions and other bodies of the state accountable, and that his committee was mandated with the scrutiny of actions of independent institutions.
“Initially, when we summoned the JSC to the committee, they refused to talk to us or provide any information to the committee. However, from the documents that the committee received later, we found out that the Hulhumale’ Magistrate Court was formed by the JSC which is a violation of the constitution and the laws,” he said.
Sameer argued that the constitution explicitly states that courts can only be formed by legislation and not “through a vote in the JSC”.
“The committee’s decision was made based on the findings of the inquiry. We have all the documents including the agendas of the meeting and the meeting minutes. It is clear that the JSC had formed and an act that is beyond the powers vested to the commission in the constitution and the JSC Act,” he added.
Sameer claimed that the decision by the committee was binding and no authority can overrule the decision.
“With the committee’s decision, we do not plan to give the budget to the court and works are underway to in drafting an amendment that would specifically state the courts that would be formed under the law,” he said.
Sameer added that the parliament will not tolerate any decision that undermines its constitutional powers and responsibilities.
Arrest of Judge Abdulla
The issue concerning Hulhumale Magistrate Court’s legitimacy came to limelight following the Prosecutor General (PG) filing criminal charges against former President Mohamed Nasheed for the detention of Chief Judge of Criminal Court Abdulla Mohamed in January 2012.
Criminal Court Chief Judge Abdulla Mohamed was arrested by the Maldives National Defence Force (MNDF) on the evening of Monday, January 16, in compliance with a police request.
The judge’s whereabouts were not revealed until January 18, and the MNDF acknowledged receipt but did not reply to Supreme Court orders to release the judge.
Then Home Minister Hassan Afeef subsequently accused the judge of “taking the entire criminal justice system in his fist”, listing 14 cases of obstruction of police duty including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.
Afeef accused the judge of “deliberately” holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, and maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes.
The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.
Nasheed’s government subsequently requested assistance from the international community to reform the judiciary. Observing that judicial reform “really should come from the JSC”, Foreign Minister at the time, Ahmed Naseemm said that the JSC’s shortcomings “are now an issue of national security.”
The judicial crisis triggered 22 days of continuous protests led by senior opposition figures and those loyal to former President Maumoon Abdul Gayyoom, which eventually led to the controversial toppling of Nasheed’s administration on February 7.
The PG’s Office filed charges based on the investigations by Human Rights Commission of Maldives (HRCM) on the arrest, which concluded that Nasheed was the “highest authority liable” for the military-led detention of Criminal Court Chief Judge Abdulla Mohamed.
Along with Nasheed, the report concluded that the former president’s Defence Minister, Tholhath Ibrahim Kaleyfaanu, was a second key figure responsible with others including Chief of Defence Force Moosa Ali Jaleel, Brigadier Ibrahim Mohamed Didi and Colonel Mohamed Ziyad.
Charges were also filed against all of those which the HRCM investigation report identified as responsible for the arrest in Hulhumale’ Magistrate Court.
Hulhumale Magistrate Court and legitimacy
During the first hearing of the trial, ex-president Nasheed’s lawyers took procedural points challenging the legitimacy of the court, but were rejected without justification. Nasheed’s legal team’s appeal challenging the legitimacy was initially rejected by the High Court claiming that it cannot look into a matter that was already being heard in Supreme Court.
However, the High Court later granted Nasheed an injunction temporarily suspending the trial of the former president at the contested Hulhumale’ Magistrate Court. The injunction is pending a ruling on procedural points raised by the former President’s legal team.
Following the injunction, Hulhumale’ Magistrate Court has announced that it had suspended all ongoing cases.
In its announcement, the Hulhumale’ Magistrate Court said it has suspended proceedings on cases involving marriage, divorce, guardianship, family matters, property lawsuits, civil cases, criminal cases involving extension of detention periods as well as other matters that could be affected by the questions raised over its legal status.
Following the High Court’s injunction granted to Nasheed, the JSC filed a case in Supreme Court asking it to look into the legitimacy of the court. The Supreme Court then instructed the High Court to halt its hearings on the appeal.
Supreme Court had previously ordered the Civil Court to send over all files and documents on a case submitted by a lawyer, Ismail Visham, over a year ago challenging the legitimacy of the Hulhumale’ Magistrate Court.
The Supreme Court on November 19, held the first hearing of the case concerning the legitimacy of Hulhumale’ Magistrate Court and Ismail Visham was decided as the respondent of the case.
Nasheed’s legal team also intervened in the court case. Nasheed’s lawyers stated that the case involved the interests of the former president as his case regarding the detention of the Chief Judge of Criminal Court Abdulla Mohamed is heard by Hulhumale’ Magistrate Court.
Meanwhile, several prominent figures have raised doubts over the legitimacy of Hulhumale Magistrate Court.
Former Chairman of the Constitutional Drafting Committee of the Special Majlis, Ibrahim ‘Ibra’ Ismail, in an article in his personal blog stated – “The [Hulhumale’ court] was created by the Judicial Services Commission (JSC) without authority derived from law. Therefore the validity of any order or judgement issued by this court is questionable, and the constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. Therefore, President Nasheed’s decision to ignore the summons has more than reasonable legal grounds.”
Ismail further writes that no court has the power, under any law, to issue a travel ban on a person without ever summoning them to court.
He also stated that there was ample to room to believe that the courts were acting with a bias against Nasheed, owing to a number of other politicians and business tycoons who were repeatedly defying court orders and summons.
Prominent lawyer and Independent MP Mohamed ‘Kutti’ Nasheed – who is also the chair of Parliament’s Independent Oversight Committee – in his personal blog also echoed similar remarks explaining that a magistrate court could not legally be established at Hulhumale’.
However following the Supreme Court’s order, Nasheed told Minivan News said that he “wished to give a considered view soon” but refused to reveal a specific date by which he would respond.
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Regardless of what the Committee may say, it is a clear and unambiguous legal tenet that no one interferes with sub judice matters. It is obvious that the Hulhumale' Court matter is a sub judice case pending before the Supreme Court. Therefore, the Committee cannot, in its exercise of the legislative function, pass any resolution/motion leave alone, a decision on the subject. However, what this Committee ought to have done, within its legislative function, is to declare its findings as a report, noting therein that through its investigation of the activities of JSC, it is convinced that JSC had not followed the law relating to the setting up of the courts in re Hulhumale' Court and shared this information with the public. Let the SC decide whether Hulhumale' Court is an unlawful court. It is time that responsible bodies of the State follow professional and principled dispositions in executing their respective functions.
The Supreme Court is above the law because it is a court. The message is clear: The courts can do whatever they want and they are accountable to no one. Time and time again these courts and judges justify why Anni had to do what he did in detaining the judge. The courts cannot be more important than the people of this country and Anni was trying to protect the country. If what Anni did in detaining the corrupt judge was illegal, what the courts are doing in using their authority and power to protect the interests of corrupt individuals and institutions is no more legal.
Does the law have a specific criteria for judging matters related to national security? Matters of national security will be best known to the Defense Ministry and not to some judge unfamiliar with such issues.
A judge under the shadow of corruption (Azima Shukoor was supposedly sending sms 's detailing how a specific matter ought to be dealt with, by Abdulla Ghazee who was acting upon Azima's wishes while she had no official capacity, for over 6 months) who was being protected by corrupt officials will be able to dish out injustice. If injustice is allowed to run rampant it is definitely a matter that concerns the President whose job it is to protect the country's citizens.
Any pretense of the Maldives being a nation of laws has long since been dispelled. Except for the brief period of Anni's administration when there was a modicum of effort to cleanup the cesspool that is the court system, the Maldives has never respected the law. Gayoom and his goons used the law as their weapon to silence dissent. Baghee Waheed is proving little better.
There is no constitution in Maldive we have only Burumaa Gasim, Faithless Imran and Dr. Bagee Waheed this what the P.H.D stand,s for
Nasheed made a mistake when he went along with the decision to detain Ablho. Nasheed should have signed a war communique, and deployed death squads to hunt down and executed Ablho - and the uploaded the execution video to youtube.
People who use their positions of power to molest children deserve a summary execution at best, torment without end at worst.