The High Court has rejected former President Mohamed Nasheed’s appeal challenging the legitimacy of Hulhumale’ Magistrate Court, and its summoning of him in connection to the detention of Chief Criminal Court Judge, Abdulla Mohamed.
The former President’s legal team appealed the court’s summoning order issued to police to summon him to a rescheduled hearing to be held on Sunday at 4:00pm.
Nasheed and his lawyers did not appear at the court hearing, and police made no attempt to arrest the former President.
The trial, which has been described by present Home Minister and former Justice Minister Mohamed Jameel on twitter as a “historic criminal trial” has escalated political tensions in the country.
Nasheed’s legal team earlier on Sunday challenged the legitimacy of Hulhumale’ Magistrate Court, claiming that the court was formed in contradiction to the provisions stated in the Maldivian constitution.
Speaking to local media , member of Nasheed’s legal team and the former Minister of Human Resources Hassan Latheef said the Hulhumale court had “no legal capacity” to issue an order to police to summon Nasheed.
“In the appeal, we also intend to raise the question of legitimacy surrounding Hulhumale’ Magistrate Court. We also hope that the High Court will make a decision on the legality of the formation of this court,” explained Latheef.
The team had filed for a temporary court injunction to halt the trial until the appeal case was concluded.
Former MP and President of MDP Ibrahim ‘Ibra’ Ismail echoed similar remarks,raising doubts on the legitimacy of Hulhumale’ Magistrate Court.
Writing on his personal blog, Ibra claimed that the constitution had very clearly mentioned that trial courts would be defined and created by a law.
“When Parliament created courts by the Judicature Act, there was no ‘Hulhumale’ Court’ designated as a Magistrates Court,” he wrote.
“The Supreme Court itself is still sitting on the case of the validity of the [Hulhumale’ Magistrate Court]. It was created by the Judicial Service Commission (JSC), without authority derived from law. Therefore the validity of any orders or judgments issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, ie, orders which are not derived from law,” he explained.
He also cast doubts on the legitimacy of the JSC’s decision to appoint a panel of judges to look into the case.
“The Judicature Act does make some provision for Superior Courts (Criminal Court, Civil Court, Family Court and Juvenile Court only) to appoint a panel of judges for some cases. Such panel has to be decided by the entire bench or Chief Judge of THAT court. In this case, a panel of judges from other courts was appointed by the JSC to [Hulhumale’ Magistrate Court]. The JSC does not have that authority by Law,” he contended.
“There is more than ample grounds to contend that the summons was issued by an unlawful panel of judges, sitting in an unlawful court, which had already issued an unconstitutional restraining order which was ultra vires,” he added.
Nasheed was initially to appear at the Hulhumale Magistrate Court on last Monday but instead decided to depart on his party MDP’s campaign trip ‘Vaudhuge Dhathuru’ (‘Journey of Pledges’) to southern atolls, defying a previous court order that he remain in the capital.
On September 26, Hulhumale’ Magistrate Court ordered that the former President be confined to Male’, ahead the court case.
The court officials claimed that such a travel ban was the “standard procedure” followed by all courts to “necessitate those accused in a case to obtain permission from the relevant court to leave the country”.
Following Nasheed’s failure to present himself on last Monday’s hearings, Hulhumale Magistrate Court asked the Maldives Police Service to “produce” Nasheed for the rescheduled hearings but was “not to be detained”.
Initially upon reception of the Hulhumale Court’s request, Police Media official Sub-Inspector Hassan Haneef said the authorities would enforce the “court order” to summon Former President Mohamed Nasheed to the court.
However, police on last Saturday said in a statement that, given the phrasing of the request made by the Hulhumale’ Magistrate Court, Nasheed could only be produced to the court with his consent and the request did not mention to detain him.
The statement by the police stated that “producing someone out of his will” would mean to “limit his freedom” and therefore it amounted to an arrest which was not mentioned in the court’s request.
Hulhumale’ Magistrate court initially rejected the case forwarded by the Prosecutor General against former President, stating that the court did not have the jurisdiction to look into such cases as stated in the Judicature Act.
The state then appealed the decision in High Court and won its case where the Hight Court invalidated the decision.
Deputy Prosecutor General Hussain Shameem, dissenting the decision of Hulhumale’ Magistrate Court claimed that the court did have the jurisdiction to hear the case of former President.
He contended that should the court maintain its decision against hearing the case, there were few other judicial alternatives in trying to ensure a “fair trial”.
The High Court ruling stated the case was based on the “unlawful detention” of a person, adding that magistrate courts have the jurisdiction to proceed with such cases.
Following the High Court ruling, Hulhumale’ Magistrate Court decided to re-accept the case and proceed with the hearings.
On January 16, Chief Judge Abdulla Mohamed was detained by the military, after he had opened the court to order the immediate release of former Justice Minister, current Home Minister and deputy leader of the Dhivehi Qaumee Party (DQP), Dr Mohamed Jameel Ahmed.
The former Home Minister Hassan Afeef said at the time that military assistance was sought for “fear of loss of public order and safety and national security” on account of Judge Abdulla, who had “taken the entire criminal justice system in his fist”.
Judge Abdulla’s arrest sparked international criticism of the Nasheed administration as well three weeks of anti-government protests in January, leading to Nasheed’s controversial resignation on February 7.
Along with Nasheed, former Defence Minister Tholhath Ibrahim as well as three other senior military officers are facing charges over the arrest of the judge.
Nasheed has meanwhile vowed to his supporters that his name would appear on the ballot paper of the next presidential election, and that he was “not in the mood to be straitjacketed and put in a dungeon.”