Former Defense Minister Tholhath Ibrahim Kaleyfaanu has denied the charge of arbitrary detention of Chief Judge of Criminal Court Abdullah Mohamed, during the first hearing of his criminal trial held in the controversial Hulhumale Magistrate Court.
The Prosecutor General has charged Tholhath for arresting the judge in January 2012, during his tenure as the minister of defense under former President Mohamed Nasheed’s administration.
Others facing the same charges include former President Mohamed Nasheed, former Chief of Defense Force retired Major General Moosa Ali Jaleel, former Maldives National Defense Force (MNDF) Male Area Commander retired Brigadier General Mohamed Ibrahim Didi and Colonel Ziyad.
During the first hearing of the trial held on this Monday, State Prosecutor Abdulla Raabiu claimed that following orders from the Commander in Chief – President Mohamed Nasheed – Tholhath had orchestrated the plan to arrest the judge and had arbitrarily detained Judge Abdulla Mohamed from January 16, 2012 until February 7, 2012.
Tholhath should therefore be charged for the offense of arbitrarily detaining an innocent individual as stipulated in article 81 of the Penal Code, Raabiu added.
The article 81 of the Maldives Penal Code states: “It shall be an offense for any public servant by reason of the authority of office he is in to detain to arrest or detain in a manner contrary to Law innocent persons. Person guilty of this offense shall be subjected to exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.00”.
Denying the charge, the former defense minister claimed that charge pressed against him was “not legitimate”, but did not state his reasons for the claim.
Speaking on behalf of Tholhath Ibrahim, his defense lawyer Mohamed Ibrahim argued that the trial lacked the necessary impartiality, contending that same charges should be pressed against former Home Minister Hassan Afeef and Commissioner of Police Ahmed Faseeh, as they were responsible for maintaining law and order within the state.
Detention of the judge
Minister Afeef at the time of the judge’s arrest accused him 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, and barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes, and releasing a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.
Afeef also alleged that the judge actively undermined cases against drug trafficking suspects and had allowed them opportunity to “fabricate false evidence after hearings had concluded”.
Judge Abdulla “hijacked the whole court” by deciding that he alone could issue search warrants, Afeef alleged, and had arbitrarily suspended court officers. He also accused the judge of “twisting and interpreting laws so they could not be enforced against certain politicians” and “accepting bribes to release convicts.”
The Judicial Services Commission (JSC) itself had investigated Abdulla Mohamed but stopped short of releasing a report into his ethical misconduct, after the Civil Court awarded the judge an injunction against his further investigation by the judicial watchdog.
JSC whistleblower Aishath Velezinee has also contended that the JSC’s blanket reappointment of all interim judges and magistrates in 2010 violated article 285 of the constitution guaranteeing an ethical and qualified judiciary, and that as such, the case “is based on a false premise, the assumption that Abdulla Mohamed is a constitutionally appointed judge, which is a political creation and ignores all evidence refuting this.”
The JSC itself had investigated Abdulla Mohamed but stopped short of releasing a report into his ethical misconduct after the Civil Court awarded the judge an injunction against his further investigation by the judicial watchdog.
Military assisted police
During Tholath’s trial, his lawyer argued that the military did not conduct intensive legal reviews of requests for assistance from the police, and said his client fully believed that the military should act as quickly as it could to assist the police when required.
When the judges sought to clarify as to what part of the charge Tholthath was denying, his lawyer stated that his client had not done anything against the law.
In response to Tholhath Ibrahim’s denial of the charges, the state produced witnesses in support of its claim.
This list of witnesses included current Chief of Defense Force Major General Ahmed Shiyam, former Police Commissioner Ahmed Faseeh, former Vice Chief of Defense Force Farhath Shaheer, former Military Intelligence Chief Brigadier General Ahmed Nilam, former Deputy Commissioner of Police Ismail Atheef, Colonel Wise Waheed and Maldives National Defense Force (MNDF) Media Official Colonel Abdul Raheem.
Along with the witnesses, the state also produced as evidence a list of text messages sent from Tholhath Ibrahim’s mobile phone, video footage of the arrest of the judge and a transcript of a cabinet meeting in which the issue was debated.
State prosecutor Raabiu said the state was willing to produce more witnesses and evidences to court if the need arises as the trial progressed.
When the evidence was produced in court, Tholhath lawyer requested the court give a period of one month to review the evidence put forth against his claim.
Dismissing the request, the sitting judges stated that the trial had been put on hold for a long time and that certain documents had already been shared with the defendants, therefore the next hearing would be scheduled for March 13, giving the defendant a period of 23 days.
An investigation led by Human Rights Commission of Maldives (HRCM) found the former President Nasheed as the “highest authority liable” for the military-led detention of the Judge. The HRCM also identified Tholhath Ibrahim as a “second key figure” involved in the matter.
In July 2012, Prosecutor General Ahmed Muizz pressed charges against the parties who had been identified in the HRCM investigation as responsible for the arrest.
Following the charges, former President Nasheed’s legal team challenged the legitimacy of the Hulhumale Magistrate Court in High Court, but the Supreme Court intervened and dismissed the claims by declaring the magistrate court was legitimate and could operate as a court of law.
The trial was heard by all three judges of Hulhumale Magistrate Court appointed to look into the case. The panel consists of Judge Shujaau Usmaan, Judge Hussain Mazeed and Judge Abdul Nasir Abdul Raheem.
The Hulhumale’ Magistrate Court, which is also trying former President Nasheed for his detention of the Chief Criminal Court Judge during his final days in office, was created by the Judicial Services Commission (JSC).
The JSC, which includes several of Nasheed’s direct political opponents including rival presidential candidate Gasim Ibrahim, also appointed the three-member panel of judges overhearing the trial.
Parliament’s Independent Institutions Oversight Committee has previously declared that the JSC’s creation of the Hulhumale’ Magistrate Court was unconstitutional.
However, the Supreme Court declared parliament overruled, issuing a statement that “no institution should meddle with the business of the courts”, and claiming that as it held authority over “constitutional and legal affairs” it would “not allow such interference to take place.”
“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,” the Supreme Court stated.
A subsequent request by the JSC that the Supreme Court bench rule on the court’s legitimacy resulted in a four to three vote in favour. The casting vote was made by Supreme Court Judge Adam Mohamed, also President of the JSC.