Criminal cases in PG leadership absence unconstitutional, says Drug Court judge

Any trials of criminal cases in the absence of a prosecutor general (PG) and a deputy PG violates the constitution, Drug Court Judge Mahaz Ali has said.

Writing on his personal blog, Mahaz disagreed with the attorney general’s (AG) recent suggestion that the official in the senior most position at the PG office must take over the PG’s responsibilities.

AG Mohamed Anil claimed the country was in the midst of a “state of necessity” in the aftermath of acting PG Hussain Shameem’s resignation earlier this week.

The doctrine of necessity is the basis on which extra-legal actions by state actors, designed to restore order, are deemed constitutional.

Both the Maldivian Democratic Party (MDP) and the Maldives Bar Association have also spoken out against the government’s stance on the matter.

State of necessity

Mahaz wrote that the state of necessity argument was valid only if there was no legal solution, suggesting that there was no reason President Abdulla Yameen could not propose a name for approval by the People’s Majlis.

“A state of necessity is faced only when all legal avenues have been exhausted. In the current situation, the solution is to appoint a new prosecutor general. The current People’s Majlis is not in a situation where it cannot carry out its duties,” wrote the judge.

“The authority that must nominate a candidate [the President] is able to do so. Unless these two parties are in a state in which they cannot carry out their constitutional duties, a state of necessity will not be faced in the prosecutor general’s case.”

Although Shameem has called on the executive and People’s Majlis to approve a PG immediately, President Yameen said he will only submit a new nominee to the newly elected house – set to convene on May 28.

After a drawn out nomination process, Yameen’s previous choice for the role – his nephew, Maumoon Hameed – failed to gain the required number of votes in parliament last month. In contrast to the previous session, pro-government parties will enjoy a healthy majority in the 18th Majlis.

Judge Mahaz argued that the Supreme Court order on 6 February – which ordered criminal courts to accept cases filed by the PG’s Office – did not provide a solution, only mentioning how to act in absence of a PG. The Supreme Court order was prompted by the Criminal Court’s January decision to refuse new cases until a new appointment was made.

Mahaz also referred to previous case law regarding the Attorney General’s Office, noting that no superior court had deemed similar instances to be ‘situations of necessity’ requiring the next in line to take charge of the office.

In July 2010, the eight Civil Court judges unanimously decided they would not proceed with civil cases in the absence of an AG following then-AG Husnu Suood’s resignation.

Violation of independence

The Bar Association of the Maldives has also joined the debate, arguing that the AG’s advise was inconsistent with the Prosecutor General Act, and that Shameem’s resignation had created a leadership vacuum.

The resignation of the deputy PG while the position of PG was vacant had left the office with no official who could now assume its legal responsibilities, the association said, arguing state prosecutors cannot represent the PG in the courts in the current situation.

“Given that the prosecutor general’s position is an independent and impartial position, this office believes the government’s exertion of influence by ordering state prosecutors to attend courts is a violation of the office’s independence,” the association said in a statement.

Despite the Prosecutor General’s Act requiring the appointment of a new PG within 30 days of the position’s vacancy, Shameem has headed the office for over five month’s following the resignation of his predecessor Ahmed Muiz in November.

The Criminal Court was forced to cancel more than 100 cases last week as state prosecutors refused to attend hearings, doubting their current legal capacity to represent the PG’s Office.

The Hithadhoo Court in Addu City is conducting criminal trials, however, and is issuing verdicts in the absence of a state prosecutor. Court officials told local media on Thursday that they did not accept the justification of absence put forth by lawyers from the PG’s Office.

In his resignation statement, Deputy PG Shameem had said he was unable to fulfill his duties due to the Criminal Court’s failure to prosecute foreigners involved in drug trafficking, delays in issuing rulings on drug related offenses, and “unreasonable obstacles” in filing cases at the court.

The President’s Office put out a third call for names this week, claiming the previous number of applicants had been low during the second call. Shameem had expressed interest in the position both times, while local media has speculated that a third call will allow Hameed to resubmit his application.

The MDP has also commented on the current situation, accusing President Yameen of nepotism:

“In contravention to principles of good governance in democratic countries, it is evident is more for the president in this current state to appoint his nephew or other relatives to the position of Prosecutor General.”


114 criminal hearings cancelled as state prosecutors refuse to attend court for third day

The Criminal Court has cancelled hearings in 114 criminal cases as state prosecutors refused to attend trials for a third day.

State prosecutors claim they are now “in a legal void” in the absence of a Prosecutor General (PG) or a deputy PG. Former PG Ahmed Muizz resigned in November shortly ahead of a no confidence motion at parliament, while Deputy PG Hussein Shameem resigned on Monday citing the Criminal Court’s “obstruction” of criminal justice.

Attorney General Mohamed Anil has said Assistant Prosecutor General Ahmed Hameed Fahmy must take over the responsibilities of the PG.

The leadership vacuum at the PG office “halts the criminal justice system and endangers public peace,” Anil said in a six page legal opinion sent to President Abdulla Yameen. The PG office must continue with its responsibilities in order to uphold the rule of law, he added.

Meanwhile, the Hithadhoo Court in Addu City is conducting criminal trials and issuing verdicts in the absence of a state prosecutor. Court officials told local media that the court did not accept the justification of absence put forth by PG office lawyers.

President Abdulla Yameen called Deputy Prosecutor General Hussein Shameem’s resignation “irresponsible” and said criminal cases must proceed at the courts.

Although Shameem has called on the executive and People’s Majlis to approve a PG immediately, Yameen said he would only submit a new nominee to the newly elected 18th parliament which is set to convene on May 28.

Yameen’s Progressive Party of the Maldives (PPM) holds a majority in the new parliament. The current Majlis, dominated by the Maldivian Democratic Party (MDP), had rejected Yameen’s nephew Maumoon Hameed for the position in March.

The President’s Office has put out a third call for applicants claiming the number of applicants had been low during the second call. Shameem had expressed interest in the position both times. Local media speculates a third call will allow Hameed to resubmit his application.

Chief Justice Ahmed Faiz Hussain said criminal cases can continue even with the leadership vacuum at the PG.

“The Constitution does not recognize the post of a Deputy Prosecutor General. What the Constitution accepts is a Prosecutor General. About four months have passed since we last had a Prosecutor General. That issue has been already reviewed. The situation has not changed,” Faiz said, referring to a Supreme Court order on February 18.

The order was issued in response to the Criminal Court’s refusal in January to proceed with all criminal trials in the absence of a PG, and refusal to begin new trials in February.

The Criminal Court released a statement today announcing that it will abide by the Supreme Court order and continue conducting cases.

In a resignation statement, Shameem said he was unable to fulfill his duties due to the Criminal Court’s failure to prosecute foreigners involved in drug trafficking, delays in issuing rulings on drug related offenses and “unreasonable obstacles” in filing cases at the court.

“These issues obstruct the proper functioning of the criminal justice system. I am deeply saddened to note the extreme delay on the part of those who have the power to address these issues,” he said.

PG Office Spokesperson Hussain Nashid was not responding to calls at the time of press.


Ayyube murder suspect denies charges

Fauzan Mohamed, a suspect arrested in connection to the murder of 76 year-old Ali Hassan ‘Ayyube’ has denied the charges levied against him in the Criminal Court and has said he did not want the state to appoint him a lawyer.

According to online newspaper ‘Haveeru’, a hearing in to the case was yesterday held at the Criminal Court where the Judge repeatedly asked Fauzan if he wanted the state to appoint him a lawyer. But, he replied that he will continue the trial without a lawyer and said he will not need a lawyer at any point of the trial.

During yesterday’s hearing, the state presented four witnesses, a DNA report, Ayyube’s death certificate and a crime scene report.

Fauzan also presented two witnesses for his defense but he did not have the full name and permanent address of the two witnesses. The judge asked him to provide a written document including the full names and the permanent address of the witnesses.

Ayyube’s body was discovered with multiple stab wounds in an abandoned house on Kudahuvadhoo on January 8, 2013. Police arrested six individuals in connection to the case.

The victim had previously been accused of using sorcery on Fauzan’s 37 year-old mother. She was reported missing at 2:00am on December 4, 2011 and her body was found floating in Kudahuvadhoo lagoon later that morning.

Island Council President of Kudahuvadhoo Ibrahim Fikry at the time told Minivan News that the islanders were all frightened after Ayyube’s death.

“After the death of the woman the islanders were scared, and then this incident occurred and now the islanders are worse,” he said adding that no one walked the streets after the sun went down.

“The injuries sustained were horrific,” Fikry told Minivan News at the time. He said that the victim’s forehead was slashed and that his neck was slit. “There were deep stab wounds to the chest and back, revealing the bones. The intestines were visible from a slash to the stomach,” he recalled.

In March, 2013, two minors charged with Ayyube’s murder pleaded guilty to aiding the murder in court. The two minors were charged with spying on Ayyube before the murder, and assisting the assailants to hide the weapons they used to murder him.

The step-grandson of Hassan was also summoned to the Criminal Court for his involvement in the case.

He told the court that he believed Fauzan murdered Ayyube because he was rumored to have killed Fauzan’s mother.

If found guilty, Fauzan will be sentenced to death. The death penalty will be implemented if the Supreme Court upholds the sentence and if all of Ayyube’s heirs desire the death sentence.

Before the trial ends, the court will take statements from all heirs of the victim to determine if they had any objection to passing death sentence on Fauzan.

On April 27, 2014, Home Minister Umar Naseer has said that death penalty will be implemented in the Maldives from that day onwards with the publication of procedural regulations concerning death penalty and its implementation in the government gazette.

Maldives has been maintaining an unofficial moratorium on the death penalty since 1953. After 1953, the heads of state have always commuted death sentences to life imprisonment through powers vested in him in the Clemency Act.

The last person to be judicially executed in the Maldives was Hakim Didi, who was executed by firing squad in 1953 after being found guilty of conspiracy to murder using black magic.


Justice Ali Hameed’s ‘corruption’ documents destroyed in coffee spill

The Criminal Court has asked the Prosecutor General’s Office (PG) to resend all files concerning Supreme Court Justice Ali Hameed’s alleged misuse of state funds after case documents were destroyed in a coffee spill.

The PG has asked the Criminal Court to present the damaged documents three weeks ago, but the court has not done so yet, an official from the PGO told Minivan News.

The state is raising corruption charges against Ali Hameed over the illegal transfer of credit from his state-funded mobile phone in 2010.

An official from the Criminal Court told Minivan News on April 13 that the court had not decided to accept the case or not.

Cases filed by the PG office are scrutinised in the order of submission “to make sure all the paperwork is complete and that there are no missing documents,” he said. The process normally takes “two to three days,” he added.

The case against Justice Hameed – accused of abuse of authority to benefit a third party – was sent to the PG office in July 2013 by the Anti-Corruption Commission (ACC) after investigating allegations in the 2010 audit report of the Department of Judicial Administration.

Auditors found that a Supreme Court Justice transferred MVR2,223 (US$144) from his state-funded mobile phone on different occasions during 2010.

According to the audit report, the interim Supreme Court bench on October 23, 2008 decided to provide for each justice “a post-paid line, a phone and to pay the phone bill without a set limit out of the court’s budget”.

The report also noted that between October 2008 and December 2011, Supreme Court judges paid their phone bills amounting to MVR 281,519 (US$18,257) from the state budget, despite the fact that parliament had not allocated any phone allowances to the judges. Additionally, MVR 117, 832 (US$7640) was found to have been overspent on wages and allowances to the driver of a judge’s car.

The judge is also currently subject to investigation over his alleged appearance in multiple leaked sex videos depicting him fornicating with foreign women in what appears to be a Colombo hotel room.

A further video also appears to show Hameed and a local businessman, Mohamed Saeed, discussing political influence in the judiciary.

Justice Hameed in the video reveals his political ‘hook-up’ with President Abdulla Yameen, claiming that he was one of Yameen’s “back-ups” and that his stand was “to do things the way Yameen wants”, promising to “kill off” Dhivehi Rayithunge Party (DRP) leader Ahmed Thasmeen Ali “if it comes into my hands.”

Even [Speaker of Parliament] Abdulla Shahid will know very well that my stand is to do things the way Yameen wants. That the fall of this government was brought with our participation,” he adds.

However, he also claims that he was a person who “even Yameen cannot play with” and that over time he had “shown Yameen” who he is.

After the sex tapes of Hameed surfaced in May 2013, the judicial oversight body, Judicial Services Commission (JSC), set up committees to investigate the case twice – in May and December 2013.

Both subcommittees unanimously recommended the JSC suspend Hameed pending an investigation.

However, in July 2013, the JSC disregarded the recommendation citing lack of evidence, while a JSC decision on the December subcommittee’s recommendation is still pending.


Housing Ministry authorised to withdraw land owned by Malé City Council: Civil Court

The Housing Ministry has the authority withdraw lands under the Malé City Council if the cabinet decides such lands are required for social, economic and national security purposes, the Civil Court has ruled on Wednesday.

The ruling came in response to a request temporary injunction by the owners of Lemongrass restaurants after police forcibly halted construction of a new restaurant in Malé’s carnival area last week.

The plot had been leased to Lemon Grass restaurants by Malé City Council.

But the Housing Ministry decided to take the plot back and ordered the police to halt ongoing work. Owners of Lemongrass restaurants told local media over 80 percent of construction had been completed.

The Civil Court ruled that when lands leased to people under third party agreements are withdrawn the government would have to pay compensation to the tenant.

On March 27, following a cabinet decision, the Ministry of Housing and Infrastructure decided to take over all major lands in Malé City from the city council.

The Housing Ministry and Malé City Council have clashed periodically over the ownership of land in Malé.

Minister of Housing and Infrastructure Dr Mohamed Muiz told newspaper Haveeru at the time that the lands that will be taken from the council including the artificial beach, carnival area, south harbour area, lands near the T-Jetty, Usfasgandu area on the southeast, and Dharubaaruge multipurpose hall.

Muiz said all of the plots were to be developed under a master plan formulated by the ministry, and that there were no problems between the council and the ministry.

“We are taking almost all large plots [in Malé]. We will very soon inform the council in writing that those have been taken [from the council]. We will work with the council. I don’t think this will create any problems,” Muiz said.

‘’The government has the authority to take such lands to utilise them for social and economic purposes.”

Muiz further said that all arrangements of transfer, including the issue of any existing contracts with a private party, will be dealt according to the laws and regulations.

Director of Lemongrass Ahmed Atheef Hussain told Sun Online that the Ministry of Housing and Infrastructure had claimed that the restaurant was being constructed in violation of regulations, and requested police to halt the work.


19 year-old Maldivian HIV patient gives birth

A 19 year-old woman with HIV has given birth to a child last week at the Indira Gandi Memorial Hospital (IGMH), local media have reported

According to online newspaper ‘MV Youth’ the patient was allegedly involved in a sexual relationship with a man with HIV when she was 15 years of age.

The website reported that the man who she had sex with was found guilty of having sex with the girl and sentenced to 19 lashes in 2010 by the Criminal Court. It was not confirmed whether the baby was tested positive to HIV.

Speaking to Minivan News today IGMH Spokesperson Zeenath Ali said that she had not heard of the incident.

‘’Some other news agencies had contacted me today and asked about it but I told them that only the concerned authorities such as Health Ministry and concerned persons from IGMH will have that kind of information,’’ she said.

She said she cannot confirm whether or not the information was true.

On February 27, an expatriate lab technician working at IGMH who was allegedly responsible for the transfusion of HIV positive blood to a pregnant Maldivian patient was taken into police custody.

The technician at fault reported the blood as negative despite the machine showing that it was positive for HIV.

The error was discovered when the patient came in for a routine checkup on February 18, after which the blood test report was reviewed.

The blood sample was taken from a donor found by the patient and not from the hospital’s blood bank and was not previously registered as an HIV patient.

In October 2012, the then Minister of Health Dr Ahmed Jamsheed Mohamed claimed it was only through “incredible luck” that HIV had not spread across the Maldives, considering the prolific levels of unprotected sex and intravenous drug use.

Jamsheed at the time spoke of the risks of promiscuity in the society, referring to the 2010 case where police arrested an HIV positive prostitute. He stated that the same prostitute had been identified in the Maldives as being HIV positive in the year 2009 as well.

Since the first case of HIV in 1991, 19 cases of HIV have been reported among Maldivians, while the estimations of HIV positive persons are as high as 70 – 100.

The Health Ministry has previously warned about a possible explosion of HIV/AIDS in the country, with high risk behavior such as drug use and numerous sexual partners a concern.


Nasheed backs Gasim for Speaker

Opposition leader Mohamed Nasheed has declared support for Jumhooree Party (JP) Leader Gasim Ibrahim as Speaker of the newly elected People’s Majlis.

Speaking to the media following a meeting with Gasim on Monday night, Nasheed said his Maldivian Democratic Party (MDP) parliamentary group will make a final decision on behalf of the party.

“Our party will decide on this matter on discussion among its members, within the National Executive Council. Tonight, I met Gasim and we held discussions in a very friendly atmosphere. So I hope the outcome will be beneficial to both parties,” Nasheed said.

Gasim placed third in the 2013 presidential elections and successfully sought a revote. After Gasim placed third for a second time, Nasheed sought his backing for the second round. However, the JP decided to back Progressive Party of the Maldives’ (PPM) candidate Abdulla Yameen Abdul Gayoom.

On its presidential win, the PPM and JP formed a coalition – the Progressive Coalition – along with two smaller parties. The coalition fielded joint candidates in the parliamentary elections in March. The PPM won 33 seats, the JP 15 and the MDP 26.

Tension has risen within the coalition on the question of which party should control the Speaker’s position.

Nasheed told the media that he agreed to support Gasim without any conditions and that there were benefits for the MDP and the JP from supporting Gasim as Speaker.

Gasim said all parties must come together and discuss over important issues in a democracy.

He told the press he will hold discussions with President Yameen to obtain backing from the PPM for his Speaker bid.

Meanwhile, former President Maumoon Abdul Gayoom, who is also PPM’s honorary leader spoke to newspaper ‘Haveeru’ at the airport after arriving from Srilanka and said that the normal procedure followed when appointing a Speaker of the parliament in most countries was selecting someone from the party that has the most number of MPs.

Gayoom said that PPM had not decided on the issue and will hold more discussions within the party in the upcoming days.

He also said that Gasim had told him about his interest in becoming the Speaker of parliament and said that he had not agreed to it.

In March 2014, President Abdulla Yameen said that PPM will forward its own candidate for the position of speaker of the People’s Majlis.

Parliament should be an institution that “sincerely and responsibly” fulfils the duty bestowed by the public, Yameen told his supporters in speaking at a rally at the time to celebrate the Progressive Coalition’s garnering of a 53 seat majority in Majlis elections.

“For this reason, our party wants the speaker’s post in the next People’s Majlis,” he said during the rally.

Previously, local media reported PPM MP Ahmed Mahloof as saying that both he and fellow re-elected PPM MP Ahmed Nihan had pledged to support Gasim’s candidacy for speaker while negotiating during the 2013 presidential election.

Mahloof suggested that the nomination of a PPM candidate would be likely to cause a rift within the Progressive Coalition, and would be a decision he would find difficult to support

The election of the new speaker – a position that was held by the MDP’s Abdulla Shahid in the previous parliament session – is scheduled to take place through a secret ballot of MPs at the first sitting of the new session.

Majlis regulations note that the speaker “shall be the highest authority of the People’s Majlis responsible for the conduction of all matters pertaining to the People’s Majlis including the administration, the sittings and the committees of the People’s Majlis in accordance with the Constitution and the Regulations.”

The speaker is also charged with preserving “order and decorum” within the Majlis, as well as observance of the institution’s regulations.


Civil Court reinstates policeman dismissed on witness statement dispute

The Ciivl Court has ordered the reinstatement of a police officer who was dismissed for allegedly attempting to modify witness statements.

Police Constable Ahmed Haisham was dismissed from the police force in 2009 after he confessed to calling two Lance Corporals and asking them to change witness statements against a man suspected of stabbing another police officer.

However, the Civil Court said Haisham cannot be dismissed from his job unless he is found guilty by a court of law.

The ruling referred to the Supreme Court ruling 2012/SC-C/35 which reinstated the Civil Service Commission (CSC) Chair Fahmy Hassan who was dismissed by the parliament after he allegedly sexually harassed a female staff working at the commission.

The Supreme Court said Fahmy cannot be dismissed unless found guilty by a court of law, claiming that if Fahmy was dismissed from the position without being investigated and proven guilty, as per the criminal justice procedure, then his dismissal was to be considered as double jeopardy.

Referring to Fahmy’s case, the Civil Court said Haisham must be considered innocent until proven guilty in a court of law. Further, the ruling said the Employment Act does not apply to Haisham as he is a police officer.

The ruling noted that although the police had carried out investigations, a case had not been forwarded to the Prosecutor General (PG) for prosecution.

The Civil Court has ordered the police to compensate Haisham for lost wages since December 2009, clear his record and grant him promotions he may have received had he remained with the police force.

In October 2013, the Civil Court also ordered the reinstatement of a police offices and a soldier who were dismissed on criminal charges.

Civil Court Judge Maryam Nihayath said that the Supreme Court (ruling 2012/SC-C/35) had brought into existence important procedures to follow when dealing with such cases.

The court ordered former Intelligence Chief Mohamed ‘MC’ Hameed to be reinstated in 2013. He had been dismissed from the police after the controversial transfer of power on allegations that he had abused his authority as the chief of police intelligence for the benefit of a certain political party and that he had leaked secret information obtained by the police.

An MNDF officer Ahmed Althaf who was dismissed from the force on allegations that he lost a compressor valve and asked a lower rank officer to replace it with an older one was also ordered to be reinstated in October 2013.


Drug kingpin Shafaz must return from Sri Lanka in May, says Home Minister

Convicted drug kingpin Ibrahim Shafaz Abdul Razzak must return from medical treatment in Sri Lanka by May 20, Home Minister Umar Naseer has said.

Shafaz’s temporary release in early February has garnered controversy with the Anti Corruption Commission (ACC) confiscating the passport of an expatriate doctor who signed the medical report recommending that Shafaz be sent abroad for medical treatment.

Shafaz is serving an 18 year prison sentence and was fined MVR75,000 (US$4,860) for drug trafficking in November 2013.

Speaking on Villa TV (VTV), Naseer said Shafaz’s authorized period to stay abroad will expire on May 20 and that the Home Ministry will seek assistance from the Interpol to find any inmates who flee.

Naseer defended the Maldives Correctional Services (MCS), claiming a prisoner will only be sent abroad on the recommendation of two specialist doctors. The MCS would only provide inmates with a temporary travel document instead of a passport, he claimed.

Shafaz has now appealed his 18 year jail term at the High Court.

Commissioner of Prisons Moosa Azim has previously told Minivan News that all due procedures had been followed in Shafaz’s release.

“A medical officer does not have to accompany the inmate. He was allowed to leave under an agreement with his family. Family members will be held accountable for his actions, including failure to return,” Azim told Minivan News at the time.

Shafaz was arrested on June 24, 2011 with 896 grams of heroin from a rented apartment in a building owned by ruling Progressive Party of the Maldives MP Ahmed ‘Redwave’ Saleem.

Former head of the Drug Enforcement Department, Superintendent Mohamed Jinah, told the press at the time that police had raided Henveiru Fashan based on intelligence information gathered in the two-year long ‘Operation Challenge’.

Jinah labeled Shafaz a high-profile drug dealer suspected of smuggling and supplying drugs since 2006.

He claimed that the network had smuggled drugs worth MVR1.3 million (US$84,306) to the Maldives between February and April 2011.

Since the formation of the new government late last year, the Home Ministry has made the combating of illegal drugs its top priority, culminating in the confiscation of a record 24kg of heroin.