The Civil Court has decided “there are no grounds” to grant a stay order asking the Judicial Services Commission (JSC) to halt the process of reappointment of the Hulhumalé Magistrate Court.
The order was requested by former President and opposition Maldivian Democratic Party (MDP) leader Mohamed Nasheed, who is challenging the assembly of the bench tasked with trying him for the detention of judge Abdulla Mohamed while in office.
In the hearing held yesterday (February 15) at 4pm, the presiding judge stated that the stay order cannot be granted as the court has not found that the JSC is bringing changes to the Hulhumalé Court bench.
Meanwhile the Bar Human Rights Committee of England and Wales (BHRC) has expressed concern over the “sudden resumption” of Nasheed’s trial, noting that the committee is closely monitoring the developments.
The BHRC said it had closely followed the case for almost two years. Previous observation of the case led the committee to describe the Hulhumalé court bench as “cherrypicked to convict”, prompting calls for “fundamental reform of the judiciary and its administration in the Maldives”.
In answering Nasheed’s stay order request, the JSC has previously denied that it is bringing any changes to the court, also claiming that it does not currently exist as the two out of three of the magistrates first appointed have now been promoted to superior courts.
Saturday’s trial saw the JSC raise a procedural issue, stating that while the commission has the authority and power to allocate and transfer judges, the Civil Court does not have the jurisdiction to deliberate on the legality of the Hulhumalé Magistrate Court bench as the bench was appointed on the Supreme Court’s advice.
The JSC lawyers also contended that the decision was not made by the Judicial Council as claimed by Nasheed’s lawyers, as the responsibilities and authority of the council have been taken over the Supreme Court.
Nasheed’s lawyers asked whether the JSC is claiming that the Civil Court cannot deliberate on the matter because the commission interprets the Supreme Court’s advice on appointing the bench as a court ruling or because the JSC does not believe Civil Court has jurisdiction on the matter.
The JSC lawyers responded by stating that the “procedural issue is based on Supreme Court’s decision”.
In Nasheed’s challenge at the High Court regarding the legality of the Hulhumalé Magistrate Court bench, the JSC raised a similar jurisdictional issue, with the High Court deciding that it did not have jurisdiction to look into the matter, saying it could only deliberate on decisions taken by lower courts.
In reply, Hisaan Hussain from Nasheed’s legal team explained that Article 43 (C) of the Constitution afforded every citizen the right to appeal against any administrative decision and that “therefore we are appealing JSC’s administrative decision to convene the magistrates panel”.
Subsequently, the JSC clarified that the procedural issue was based not on jurisdictional grounds but because the commission believes that the Supreme Court’s advice on appointing the Hulhumale’ Magistrate Court bench is the court’s ruling.
At that point, the presiding judge stated that the Supreme Court had issued a circular that “changes the composition of the Civil Court by 12am tonight (by 15th February)”, explaining that “I cannot assure you that I will be sitting on this appeal after the said changes; therefore I cannot give out court summons for the next hearing.
Nasheed’s legal team also requested more time to discuss the case with the legal team and lawyers based outside Maldives.
The controversial court was formed specifically to oversee Nasheed’s trial for the January 2012 detention of Criminal Court Judge Abdulla Mohamed. Legal challenges to the court have seen the case stalled since April 2013.
Nasheed’s lawyers have previously challenged – unsuccessfully – the establishment of a magistrates court in the Malé suburb, arguing that Hulhumalé is considered to be part of Malé City under the Decentralisation Act and therefore does not require a separate court.
United Nations Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul has also noted that the “appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws”.
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