Fair trial for Nasheed “difficult to see” when judicial bench “cherrypicked to convict”: BHRC trial observers

Read the BHRC’s second independent trial observation

The UK’s Bar Human Rights Committee (BHRC) has expressed “serious concern” over the appointment of judges by the Judicial Services Commission (JSC) in the trial of former President Mohamed Nasheed.

Accounts of the appointment process, “if accurate, suggest egregious unconstitutional behaviour by the JSC in selecting the judicial bench to hear Mr Nasheed’s case,” stated BHRC Executive Committee member Blinne Ní Ghrálaigh, who visited the Maldives to observe recent proceedings against Nasheed.

The committee has conducted several independent trial observations of proceedings involving the former President, who is charged over the detention of Chief Judge of the Criminal Court, Abdulla Mohamed, during the final days of his presidency.

Nasheed and his Maldivian Democratic Party (MDP) maintain that the charges are a politically motivated attempt to prevent him contesting the 2013 presidential elections, challenging both the legitimacy of the Hulhumale’ Magistrate Court hearing the case, and the JSC’s appointment of judges to the case. The JSC itself includes several of Nasheed’s direct political opponents, including rival presidential candidate, resort tycoon Gasim Ibrahim.

The Nasheed trial was meanwhile suspended by Chief Judge of the High Court last week pending a ruling into the legitimacy of the bench’s appointment – an action which led all other High Court judges to file a complaint against the Chief Judge with the JSC.

“It is difficult to see how proceedings presided over by a judicial bench, cherrypicked for their likelihood to convict by a highly politicised JSC, which includes a number of Mr Nasheed’s direct political rivals, could in any way be deemed to comply with constitutional and international fair trial rights, including the right to an ‘independent court established by law’,” stated Ghrálaigh, in her concluding remarks.

“The BHRC welcomes the current investigation by Parliament’s Independent Commission’s Oversight Committee into the judicial selection process in the case, but notes with concern the refusal by the JSC to cooperate with that investigation,” she added.

“Lack of transparency in the constitution of judicial benches and in the assignment of cases fundamentally undermines the proper administration of justice: fair trial guarantees and the requirements of natural justice demand not only that justice be done, but that it be seen to be done,” her report states.

The report provides a detailed overview of state of the judiciary and political context in the lead up to Nasheed’s resignation and prosecution.

Ghrálaigh states that given concerns about the JSC’s politicisation and “serious questions” concerning its appointment of judges to the Hulhumale’ Magistrate Court, “it is perhaps surprising that the court should have decided of its own motion (“ex proprio motu”) to deny the request made by Mr Nasheed’s legal team to postpone the proceedings until after the elections, in the absence of any objection by the prosecuting authorities to such an adjournment.”

“Although there is nothing to prohibit courts from making decisions governing their process ex proprio motu, the allegations concerning the manner of selection of the Hulhumalé Magistrates’ Court panel render the Court’s stated reasoning for its decision all the more disquieting,” she stated.

The BHRC was not seeking to downplay the seriousness of the charges against Nasheed, she noted.

“However, what is clear is that the case is far from straightforward. Central both to the context of Judge Abdulla’s arrest and to the nature of the criminal proceedings against the former president are fundamental questions of judicial independence in the Maldives.”

“The charge against Mr Nasheed is that he acted “in a manner contrary to law” in ordering the arrest and detention of a senior judge. Although the details of the prosecution case have yet to be set out, it is clear that the Article 81 offence with which Mr Nasheed is charged is not a trivial one,” the report states.

“The BHRC notes with concern the increasing number of reports and statements by international bodies, including those referenced in this report, which conclude that the Maldives does not have an independent and impartial judiciary,” the report states.

“The BHRC further notes the view inside and outside the Maldives that the failure by the institutions of the State, in particular the JSC, properly to implement constitutionally mandated reforms to create an impartial judiciary, independent from political pressures, and the failure properly to investigate and/or sanction allegations of egregious, unlawful and/or unconstitutional judicial conduct, have served significantly to derail the State’s transition to a functioning constitutional democracy,”

Given extensive local and international concern over the state of the Maldivian judiciary, Ghrálaigh observes that the context for the criminalisation of Nasheed’s detention of Judge Abdulla, hangs on whether the Chief Judge is, as stipulated by Article 81 under which Nasheed is being charge, “an innocent person”.

“It is against that background, and in the context of a number of serious complaints against Judge Abdulla, that the order for his arrest was made. That background is intrinsically bound up in the nature of the charge against Mr Nasheed: the wording of Article 81, which criminalises a public servant for “us[ing] the authority of his office to intentionally arrest or detain an[…] innocent person contrary to the law” suggests that the context to the arrest, and in particular the allegations against Judge Abdulla, will necessarily be central to the determination of the charges against the former President,” the BHRC report states.

Ghrálaigh notes that the JSC was “also subject to significant criticism for its failure properly to oversee individual complaints against individual judges. One judge against whom a number of serious complaints were levied was Judge Abdulla, accused inter alia of “implicat[ion] in 14 cases of obstruction of policy duty”, including “strategically delaying cases involving opposition [Gayoom loyalist] members”, “twist[ing] and interpret[ing] laws so they could not be enforced against certain politicians”, “accepting bribes to release convicts”13 and “hijack[ing] the whole court”.

“I was informed that a JSC complaints committee charged in December 2009 with investigating Judge Abdulla, failed to issue any findings, following an injunction sought by, and granted to the judge by the Civil Court, preventing his further investigation by the JSC and/or the publication of any report concerning his conduct,” Ghrálaigh noted.

The JSC, responsible for reappointing judges including Judge Abdulla in 2010 at the conclusion of the constitutional interim period, “failed properly ‘to fulfill its constitutional mandate of proper vetting and reappointing of judicial candidates’, a failure regarding which international bodies, including the International Commission of Jurists, have expressed concern,” she added.

“Rather, in August 2010, amidst much controversy, it proceeded to confirm almost every Gayoom-regime judge, qualified or not, in office for life, finding that the constitutional provisions regarding judicial appointment were merely “symbolic”.

“Consequently, the Maldivian judiciary remains largely unchanged since the country’s transition to a constitutional democracy: the vast majority of judges in office, including Judge Abdulla, are political appointees of former President Gayoom, and many still lack any formal training in law.”

Furthermore, “The blocking in the People’s Majlis of key pieces of legislation including the Penal Code and the Criminal Evidence Act, that would provide for equality and uniformity in the application of a codified body of law, means that mainly untrained judges continue to wield considerable discretion in their determination of cases.”

Read the BHRC’s second independent trial observation


12 thoughts on “Fair trial for Nasheed “difficult to see” when judicial bench “cherrypicked to convict”: BHRC trial observers”

  1. "... mainly untrained judges continue to wield considerable discretion in their determination of cases."

    Well this is a scary thought isn't it. I wonder where they look to, if not the law. Probably their own personal thoughts on the matter heavily influenced politically and religiously?

  2. Majority would agree that Nasheed acted as a dictator during his presidency and went against the constitution on several occasions. However, I strongly believe every criminal should get a fair trial.

  3. Huh? By the very definition of what a dictator is Nasheed wasn't a dictator...

  4. Oh!!!! Was it Nasheed the Dictator who intentionally arrested the Satan Abdulla Q.

  5. @Marie on Sat, 6th Apr 2013 4:33 PM

    "Majority would agree that Nasheed acted as a dictator during his presidency and went against the constitution on several occasions. However, I strongly believe every criminal should get a fair trial."

    Well, the rest of the majority would disagree with you. That's democracy for you. We love it.

    Our holy constitution guarantees that a man (or woman or animal) is innocent until proven guilty. So on that count, criminals never get fair trials. The term you're looking for is "accused".

  6. Nasheed the dictator, seriously, lol...Maybe he went against the constitution because the constitution in the Maldives is Fck'd. He is a modern thinker and majority of the Maldivians are still living in darkness so to speak. Sharia law, black magic, etc etc, what a bloody nightmare of a place to live !

  7. Friends..!!! FYI - Dictator's doesn't Resign & Step Down..!! Nasheed was a hero - He made the Right Decision to Resign rather than shooting them..!!


    @ ahmed Suvadeeb- Anni may have gone against some paperwork but the f*chief justice deserved it.. he deserves even worse. If i was anni, i would have made him "die in an accident" end of this whole amateur drama. Anni was the best president so far. from counts of sultanates, kings and presidents over the past 2000 years in existence.

    So yes, we are proud of what happened. it will teach those justices to be what their names are expected of to be.. justice. and that there just might be a president crazy enough to put him under arrest by closing all the books infront of him and not giving a minutes talk..

    If Maldives wants to develop into islamic ways, then democracy is a no no. cant be done... there are so many verses, so many clauses that confuse the constitution. Why not make a system that we can fully practice in our state? if you cant do that, then stop this whole religious melodrama or democratic series. we can follow only one of them... and right now; i vote for democracy as it should be, a lot of thanks to sake imran and his black beards for the extremist ideas in the public...

  9. Forgot one more thanks, thanks to sake imran and his black bearded pirates for bringing the country on the verge of bankruptcy. Sake imma fahari, the government used you.. to get rid of GMR, now beg on the streets, the country needs money.. there is an arbitration process soon to start and we are headed on the loosing path. you cant even imagine what will happen at the end.. brainless mullahs.

  10. Nasheed is a dictator and he had breached our constitution and no matter what this british lady who were brought by Nasheed says.

    Why these kind of idiots never raised any concerned when the dictator Nasheed locked the supreme court, arrested the senro political leaders, used excessive power to disperse the peaceful demonstrators etc.

    Where were all these intentional communities who are so much concerned on human rights and democracy .

    Basic point is that Nasheed is a traitor to this country and these people are using Nasheed to achieve some hidden long term agendas.

    I don't think the entire Maldivian are fools and majority of people know what the game Nahseed is playing with the people like this british lady.

  11. The god damn Chief Justice of criminal court is a product of our own doing.

    We elected an imbecilic parliamentarians whose job was, among others, to compile the constitution.

    Ablo ghazee, the abusive power of parliamentarians, the abusive power of cops, the lack of convictions against proven criminals, the god damned camels' arse-prostrating clauses, is the direct result of the failure of our esteemed parliamentarians. The only thought given during the compilation of constitution was to topple of Maumoon Abdul Gayoom.

    I find it hilarious now, it's the same constituents backing their coloured-racist parliamentarians, and blaming Ablo ghazee for all their woes.

    Start at the roots. Clean your act. Vote for one who truly will help build the god damned country for god sake; you do not have to vote for one who rants and spews filth most.


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