High Court orders halt to Nasheed’s trial pending decision on legitimacy of judge panel

The High Court has ordered the Hulhumale’ Magistrate Court to halt former President Mohamed Nasheed’s trial until it decides on the legitimacy of the panel of judges appointed to examine his case.

Nasheed is being tried in the Hulhumale’ Magistrate Court for his controversial detention of Chief Judge of the Criminal Court Abdulla Mohamed in January 2012.

The High Court has previously issued an injunction halting the case following the appeal made by Nasheed’s legal team contesting the legitimacy of the Hulhumale’ Magistrate Court itself.

However, the Supreme Court took over the case from High Court and declared that the Hulhumale’ Magistrate Court was formed in accordance to the law.

After the trial resumed, Nasheed’s lawyers again made a request to the Hulhumale’ Magistrate Court to delay the trial until the end of the scheduled presidential elections in 2013.

At the same hearing, the state prosecutors expressed no objections to the team’s request to delay the trial until the presidential elections, scheduled for September.

However, the magistrate court refused to delay the trial until the end of the elections, instead deferring the trial for a period of four weeks. The hearing was scheduled for April 4.

Nasheed’s legal team subsequently appealed the Magistrate Court’s decision not to grant a deferral until after the elections, and also filed a case regarding the legitimacy of the bench.

The High Court in the new stay order issued today and signed by Judge Ahmed Shareef, stated that the court was of the view that Nasheed’s ongoing trial must come to a halt until the legitimacy of the bench was established.

The decision – if not quashed by Supreme Court – means that Hulhumale’ Magistrate Court’s scheduled hearing of the trial set to take place on April 4 will be cancelled.

An official from the Judiciary Media Unit was earlier quoted in the local media as stating that a summoning chit had been sent to Nasheed, and that the next hearing will see the confessions of witnesses presented by the prosecution.

The decision comes at a time when the Judicial Services Commission (JSC) has come under heavy scrutiny over its appointment of the panel of the judges – which several lawyers and members of JSC itself have claimed exceeded the JSC’s mandate.

Among the JSC’s critics include JSC member Sheikh Shuaib Abdul Rahman – the member appointed from among the public.  Sheikh Shuaib Abdul Rahman previously claimed the JSC had arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case after dismissing the three names first submitted to the commission by the Hulhumale’ Magistrate Court.

“Moosa Naseem (from the Hulhumale’ Court) initially submitted names of three magistrates, including himself. This means that he had taken responsibility for overseeing this case. Now once a judge assumes responsibility for a case, the JSC does not have the power to remove him from the case,” Sheikh Rahman explained. “However, the JSC did remove him from the case, and appointed three other magistrates of their choice.”

Sheikh Rahman stated that the commission had referred to Articles 48 to 51 of the Judge’s Act as justification.

“But then I note here that the JSC breached Article 48 itself. They did not gather any information as per this article. They stated that it was due to the large amount of paperwork that needs to be researched that they are appointing a panel. However, this is not reason enough to appoint a bench,” he said.

Rahman further stated that the judicial watchdog body was highly politicised, and openly attempting to eliminate former President Nasheed from contesting the presidential elections.

Meanwhile, Speaker of Parliament Abdulla Shahid – who is also a member of the JSC – stated that he believed that the judicial watchdog had acted unconstitutionally in assigning magistrates to a particular case.

“In deciding upon the bench, the JSC did follow its rules of procedures. As in, it was voted upon in an official meeting and six of the seven members in attendance voted on the matter. The seventh member being the chair, does not vote in matters,” Shahid explained.

“However, whether it is within the commission’s mandate to appoint a panel of judges in this manner is an issue which raised doubt in the minds of more than one of my fellow members,” he added.

Other critics included United Nations Special Rapporteur (UNSR) on the Independence of Judges and Lawyers, Gabriela Knaul, who also said the appointment was carried out arbitrarily.

“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said, responding to questions from media after delivering her statement in February.

Meanwhile, the UK’s Bar Human Rights Committee (BHRC) – that has observed the ongoing trial of the former President – in its report concluded that charges against Nasheed appeared to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential election.

Speaking to Minivan News previously, Kirsty Brimelow QC, one of three UK-based experts on former President Nasheed’s legal team, contended that the prosecution of his case before the Hulhumale’ Magistrate Court fell “below international standards for fair trial procedure”.

She added that there remained a “strong argument” in the case that the prosecution of Nasheed was “not in the public interest”.

“It is a strong argument that a prosecution is not in the public interest. The currently constituted court comprises of judges who may be biased or have the appearance of bias. They should recuse themselves,” she argued at the time.