The trial of former President Mohamed Nasheed on charges of illegally detaining a judge appears to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential election, the Bar Human Rights Committee (BHRC) concluded in a report launched on Thursday (December 13).
The report was compiled by Stephen Cragg on behalf of the BHRC, the international human rights arm of the Bar of England and Wales, following a visit to the Maldives from November 3 to 6 to observe hearings of former President Nasheed’s trial.
“BHRC notes that Mr Nasheed’s lawyers have petitioned the prosecutor-general to review whether the prosecution of Mr Nasheed is in the public interest, and it seems to BHRC that this is an application worthy of very serious consideration,” the report stated.
“BHRC is concerned that a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”
According to a press release by the BHRC, the report was based on “an investigation into the circumstances surrounding the trial of ex-President Mohamed Nasheed.” The BHRC observer, Stephen Cragg, is a member of the bar and barrister at Doughty Street Chambers.
Former President Nasheed faces criminal charges for the military’s controversial detention of Chief Judge of the Criminal Court Abdulla Mohamed on January 16 this year.
Home Minister Hassan Afeef sought to justify the arrest at the time on the grounds that the judge was a national security threat after he blocked investigation of his misconduct by the judicial watchdog and quashed a police summons for him.
The judge had “taken the entire criminal justice system in his fist,” Afeef said, accusing Abdulla Mohamed of obstructing high-profile corruption cases, releasing murder suspects, colluding with drug traffickers, and barring media from corruption trials.
Judge Abdulla “hijacked the whole court” by deciding that he alone could issue search warrants, Afeef contended, and had arbitrarily suspended court officers.
In the conclusions of the BHRC report, the author observed that the detention of the judge was “not a simple case of abuse of power.”
“Rather, the underlying narrative of the situation is that of a president desperate to bring change to a new democracy after decades of oppression, and finding himself thwarted by the inability of the organs of state set up by the constitution to deliver much needed reform,” the report stated.
Referring to “the large number of international reports” that have found the Maldivian judiciary to be flawed, the BHRC noted that the Judicial Service Commission (JSC) “failed in its twin tasks of ensuring that the judiciary has the appropriate experience and qualifications, and in bringing to book the judges who fail to fully and fairly implement the rule of law.”
“Implicit in these criticisms is that Mr Nasheed cannot be guaranteed a fair trial,” the report concluded.
The BHRC also expressed concern with the “deterioration of human rights protection in the Maldives since the transfer of power in February 2012” as reported by Amnesty International and the International Federation of Human Rights (FIDH).
“Again, a failure to comply with human rights standards by the Maldivian authorities is a grave threat to the democracy so recently achieved,” the report stated.
“How the Maldives deals with this prosecution and trial (if it goes ahead) may well decide the course of its government for years to come.”
Back in September, the government criticised Amnesty International’s report, “The Other side of Paradise: A Human Rights Crisis in the Maldives”, as being “one sided”.
The BHRC is a UK-based independent body “concerned with protecting the rights of advocates, judges and human rights defenders around the world.”
JSC and failure of oversight
The BHRC report also noted that article 285 of the constitution mandated the JSC to determine whether or not the judges on the bench possessed “the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, [and] high moral character.”
“However, the JSC failed to bring in any standards in the two years allowed and in August 2010 almost all judges, good and bad, were re-instated in post at that point amidst much controversy,” the report observed.
It added that the International Committee of Jurists (ICJ) expressed concern with the JSC’s failure to “fulfil its constitutional mandate of proper vetting and reappointment of judges.”
“The JSC (made up of politicians, lawyers and judges) has also been criticised as ineffective in its other role of overseeing complaints about judges. Complaints about the worst judges built up and were not investigated. A large number of complaints were made about the head of the criminal court in Malé, Judge Abdulla Mohamed,” the BHRC report explained.
“In an open letter to parliament in March 2011, former President Nasheed’s member on the JSC and outspoken whistle-blower, Aishath Velezinee, claimed that the politically-manipulated JSC was protecting Judge Abdulla.
She claimed this protection was provided despite the existence of “reasonable proof to show that Chief Judge of the Criminal Court Abdulla Mohamed was systematically committing the atrocity of setting free dangerous criminals and declaring them innocent with complete disregard to the evidence [presented at court].”
Despite Judge Abdulla having been sentenced for a criminal offence, Velezinee wrote that Speaker Abdulla Shahid pushed for his reappointment and later “bequeathed the Criminal Court to Abdulla Mohamed until 2026″ under the Judges Act, which was passed hastily during the constitutional crisis period in July-August 2010.
Velezinee meanwhile told the author of the BHRC report that it was “the State’s duty to remove [Judge Abdulla] from the judiciary”.
“She has written a remarkable memoir of her time on the JSC, describing the machinations and tribulations of the Committee, and its failure to establish ethical or moral standards for judges,” the report noted.
Meanwhile, on January 16, 2012, “frustrated by an inability to remove allegedly bad judges, President Nasheed (or one of his ministers, it is still not entirely clear) ordered the detention of Judge Abdulla,” the BHRC report continued.
“He was taken to an island and kept there for almost three weeks, despite the protests of lawyers and judges. It does not seem that he was badly treated, and the government emphasised the lack of other effective powers to justify its actions.”
It added that the Supreme Court demanded the immediate release of the judge “as he was arrested not in conformity with the laws and regulations, and the acts of MNDF [Maldives National Defence Force] was outside its mandatory power.”
The trial
Former President Nasheed’s trial is set to resume after the Supreme Court on December 5 decided in a 4-3 ruling that the Hulhumale’ Magistrate Court hearing the case was legitimate.
The BHRC report noted that Nasheed was charged under article 81 of the penal code, which states: “It shall be an offence for any public servant to use the authority of his office to intentionally arrest or detain any innocent person in a manner contrary to law. A person guilty of this offence shall be punished with exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.”
The former President’s legal team informed the author that “a range of defences will be advanced” in his trial.
“For example, is the President a public servant to whom the Article applies? Does the Article relate only to the person who, in fact, takes a person into custody or directly orders an arrest? What effect does the term ‘innocent’ have in the Article?” the report explained.
“The team is to request that the Prosecutor General reconsiders whether the prosecution against Mr Nasheed should proceed, arguing that it is not in the public interest that it should do so. It was explained that if Mr Nasheed is sentenced to more than a year in custody then (even if he is immediately pardoned) he will be excluded from running in the 2013 elections.”
The author of the report also spoke to a number of lawyers, politicians and the Prosecutor General during their visit, and “almost all criticised the failure of the JSC to bring about reform of the judiciary in the way expected by the new constitution.”
“Opinion was split between those who thought there was no option but to prosecute Nasheed, and those who wanted the wider context to be taken into account by the prosecutor,” the report noted.
“There was a strong feeling amongst some that the politicians of the old regime had escaped prosecution for much worse abuses of power. The foreign government representatives I spoke to clearly see Nasheed as a force for good in the region and desperately want a solution to the current proceedings which will allow him to stand in the election next year.”
Independent MP Mohamed ‘Kutti’ Nasheed, chair of parliament’s Independent Institutions Oversight Committee, meanwhile explained that the absence of powers to replace members of the JSC “severely restricted” the parliamentary committee from ensuring that the JSC was functioning effectively.
Nasheed also criticised the Supreme Court for overturning Acts of Parliament that “purported to legislate for the justice system” as part of its stance that “anything to do with the administration of justice was a matter for the [Supreme] Court.”
Former MP Ibrahim Ismail ‘Ibra’, chair of the constitution drafting committee of the Special Majlis, meanwhile contended that the President “had no choice but to arrest Judge Abdulla” as the only option to “remove a rogue judge from the criminal justice system.”
Ibra explained that the “backdrop to President Nasheed taking or authorising the action he did against the judge” was the JSC’s failure to investigate serious complaints, some dating back to 2005.
“However, when the JSC did adjudicate against Judge Abdulla in one case, the Judge went to the civil court and obtained an injunction against the JSC to stop them taking action against the judge. Essentially the system had ground to a halt,” the BHRC report stated.
Prosecutor General Ahmed Muizz however insisted that “it was right that Mr Nasheed should face trial and that even before Mr Nasheed had lost power it was considered the right thing to do.”
“I asked him whether there was a code of practice which governed prosecution decisions. He said that there was but that it was not in the public domain. He said that it was possible for prosecution decisions to take into account the public interest, but was a little vague as to how this was actually done,” the report stated.
“He mentioned that when Mr Nasheed had been president there had been a decision in the public interest not to pursue him in relation to fairly minor electoral offences. He did say that it was possible for the prosecutors to reconsider, following charge, whether a prosecution should continue.”
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Anni wanted to take the entire judiciary system under his fist when he was in power.
He tried to manipulate the public and threaten the public openly saying that he will show his evils side to whose who does not obey him.
His actions in this regard was severe breach of our constitution and are in line with his threatening messages.
Arrest of chief Judge is to threaten entire judiciary system, arrest of senior MPs were against the democratic norms.
Locking up the supreme court is a challenge to the democracy .
Then who is this Bar Human rights to issue reports?
I can also bring some foreign people and issues multiple reports .
Nasheed is a man that need to be put behind the bar for his illegal actions and corrupted money he had take from GMR.
If he is able to live freely after robbing this country, then I guess everyone else has the right to commit crime and live free.
Mody, your 'chief judge' is a child abuser. He deserved to be executed without pity or kindness. You're free to join him in his grave if you love him so much.
The president has a responsibility, and duty to the people to punish such criminals. If you don't like it, kindly leave Maldives and go back to whatever cesspit you came from.
This is a very interesting report, coming from a highly respected international body of lawyers (http://www.barhumanrights.org.uk/about-bhrc).
The Maldivian regime, however, is not going to listen to anyone as it has clearly demonstrated. This is one of the reasons why the regime is trying to gather support from the Chinese. We all know (or should know), China's record when it comes to human rights.
Good Report based on proper findings. Maumoon's Regime is not ready to listen to any one. They need the Power!!!
The website of BAR HUMAN RIGHSTS COMMITTEE reads “The BHRC is dedicated to promoting principles of justice and respect for fundamental human rights through the rule of law in different parts of the world.”
When return to the principle RULE OF LAW, I would say Stephen Cragg is biased and erred on each and every point he proposed as his findings.
Nasheed was the head of state and head of government when he “abducted” the sitting judge. After the abduction, nasheed and his party fellow members have made several statements regarding the abduction. Nasheed, then headed the army, publicly announced that he had abducted the Judge and he will never return.
The question is, is it legitimate to abduct a judge/lawmaker or anyone beyond the powers stipulated in the Maldivian Constitution and any convention whatsoever it is? Therefore, who shall be responsible for the crime committed by Nasheed? Who shall be responsible for abducting and the failure to produce the judge before a tribunal? Who shall be liable for it?
As there was a procedure to arrest a judge (police should obtain a warrant from High Court) why did nasheed refused to obey law? Finally, is abduction legitimate under any law or convention? Was nasheed having kind of extraordinary rendition program like CIA?
Mody! President Anni did the one right thing, morally. He arrested a pervert. All of a sudden you have become so concerned with your constitution? Only just nobody knew how to spell that word...
Where is that idiot Tsk Tsk? Silenced finally?
Just one fact : Judge Ablo made reenact two KIDS, the SEXUAL ABUSE done to them, in front of the court AND the perpetrator who confessed the same.
It's SICK.
It's something which NEVER can be justified. 'Not even" in the name of religion as some people do. Defending or excusing or explaining such a 'judge' : as guilty as Ablo himself.
To those extremist who still do defend : what YOU do when it would be YOUR KID ?
Indeed.
The report of Judge Abdullah making two victims of sexual molestation reenact what happened to them infront of the court became a matter of public information based on a letter that then Attorney General Dr Hassan Saeed sent to then President Gayyoom referring the incident as an example of what was wrong with the Judiciary and it's lack of sensitivity.
But that does not make the Judge a child molester. Nor was he alleged to be one until Nasheed's supporters had to try and justify the (unlawful) arbitrary arrest of the judge.
And now, as then, calling him a child molester or pervert still does not make his arrest legal.
Nasheed as President played Russian Roulette and lost. If he had stayed within the boundary of the very constitution he claimed to be defending, Waheed would still be simply VP.
All advanced civilised societies need a fair and educated judicary ( not hand picked by the previous dictator). Anni took on the final obstacle to a fair democratic society. He was 48 hours from rooting out he eil and surprise surprise, the coup happened over night.
Without judicial reform, WE ARE ALL DOOMED!
Fair trial and Human rights, it's all about the two. When you're a public figure/politician and just a citizen, you have to exercise your right and be cautious on all aspects you do.
The whole country knows, that we have huge issues with our judiciary. When genuine attempts were made to reform the judiciary, guys who were involved in the process have become victims.
For the kind atention of BHRC:
The brutal and horrific assassination of Pro-Government PPM's MP Dr. Afrasheem was a contract killing which is now believed to have been carried out by MDP.
Now that's what we call "politically motivated"!
Former President Nasheed is a mentally sick man, he is not capable to hold a public office.
1. First things first. The Bar Human Rights Committee cannot be seen as unbiased in this particular case. The Vice Chair of the Committee who brought out the report is one, Ms. Kirsty Brimelow, who also happens to be defense counsel for former President Mohamed Nasheed.
Let us imagine for a second that an imaginary defense lawyer in the Maldives, let's say Ahmed Shaainu was representing a person accused of murder, let's say Husham, in a case. Would we accept a report arguing for Husham's innocence if it was brought out by an NGO in which Shaainu had a senior post?
2. Second, the information for the report was provided by the Maldivian Democracy Network which was earlier called the Maldivian Detainee's Network in the run-up to the 2008 elections. The MDN was once headed by Ms. Shahindha Ismail who was backed by former President Nasheed to head the Police Integrity Commission until her recent resignation. The MDN's ties to the MDP are no secret in the Maldives. So the source of information itself is biased.
3. The report fails to mention that the ICCPR was acceded to in the Qayyoom-regime. The sequence of events spelled out misleads the reader into thinking Nasheed brought about these changes.
4. Chief Justice Abdulla Mohamed came under fire from politicians from the MDP. He was never the object of public comment until Nasheed riled up his supporters against the Judge. Judicial reform is still not a popular issue in the Maldives due to poor public awareness about the functioning of the courts.
5. The Hulhumale Magistrate Court was established to provide a judicial post for the wife of a sitting member of the Judicial Services Commission NOT AN MP. The member in question is a lawyer who was elected to the post from those in the legal practice with the backing of the MDP. The lawyer whose wife is the magistrate of the Hulhumale Magistrate Court was placed in the JSC to prevent Shaheen Hameed's nominee from securing the post. The BHRC has either been misinformed about this fact or has deliberately chosen to verify it. Regardless glaring errors in this report render it suspect.
6. The BHRC should also join prominent members of the ICJ in condemning Nasheed's arrest of Abdulla Mohamed as wrong and unjustifiable.
We don't believe bars and discos can have an opinion on human rights.