JSC contests High Court jurisdiction to rule on legitimacy of Hulhumale’ court bench

The Judicial Service Commission (JSC) on Thursday (Apirl 11) asked the High Court to dismiss a case filed by former President Mohamed Nasheed contesting the legitimacy of the Hulhumale’ Magistrate Court’s bench controversially constituted by the commission.

At Thursday’s hearing, the JSC contended that the High Court did not have jurisdiction to rule on the case as the panel of judges presiding over Nasheed’s trial – on charges of illegally detaining Criminal Court Chief Judge Abdulla Mohamed in January 2012 – was appointed based on counsel from the Supreme Court.

“It is strange that the JSC’s legal counsel contested jurisdiction of the High Court to hear the case on the grounds that they had sought the advice of the Supreme Court in determining the bench,” Maldivian Democratic Party (MDP) MP Mariya Ahmed Didi, spokeswoman of the former president said after the hearing.

“Recently, when eight judges of the High Court bench filed a complaint at the JSC claiming that the High Court had not followed procedure in accepting President Nasheed’s appeal and granting stay to Hulhumale’ Magistrates’ Court proceedings, the JSC had rejected it on what we understood the grounds to be as the matter should be heard in court. We did ask for an adjournment to prepare our response to their procedural issue. The court said they would give us time to prepare for our response and adjourned the hearing.”

Raising the procedural issue at Thursday’s hearing, the JSC lawyer reportedly informed the High Court that the Supreme Court provided counsel on September 4, 2012 on appointing judges to the Hulhumale’ Magistrate Court bench.

The JSC lawyer argued that decisions by the apex court could not be challenged at the High Court.

In response, Hisaan Hussain from the former president’s legal team noted that counsel provided by the Supreme Court in a letter did not carry the same legal weight as a court ruling.

Chief Judge Ahmed Shareef Ali then adjourned the hearing after granting time for Nasheed’s legal team to study and respond to the procedural issue. In addition to the chief judge, the three-judge High Court panel included Judge Abbas Shareef and Judge Abdul Raoof Ibrahim.

Hulhumale’ court bench

In a recent trial observation report, the UK’s Bar Human Rights Committee (BHRC) expressed “serious concern” over the appointment of judges by the JSC to the Hulhumale’ Magistrate Court bench.

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.

“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 MDP maintains that the charges against Nasheed  represent a politically-motivated attempt to bar its presidential candidate from upcoming presidential elections scheduled for September 7, 2013.

Legal wrangle

Nasheed’s trial at the Hulhumale’ Magistrate Court was suspended after the High Court issued a stay order on April 1.

The trial had resumed in March after the Supreme Court declared the magistrate court legitimate in a controversial 4-3 ruling.

At the least hearing of the trial at the Hulhumale’ court, the state prosecutor said that the Prosecutor General’s Office (PGO) did not have any objections to granting a request by the former president’s legal team to defer the trial until after September’s presidential election.

The Hulhumale’ Magistrate Court however refused to delay the trial and scheduled its next hearing for April 4.

Nasheed’s legal team subsequently appealed the magistrate court’s decision not to grant a deferral while also filing a case challenging the legitimacy of the bench.

The second case followed testimony from members of the JSC at parliament’s Independent Institutions Oversight Committee suggesting that the commission exceeded its mandate in appointing judges to the magistrate court bench.

Sheikh Shuaib Abdul Rahman, member of the general public on the JSC, testified that the commission arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case after dismissing the three names first submitted by the Hulhumale’ Magistrate Court.

“Moosa Naseem (chief magistrate of 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.”

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 – also a member of the JSC – told the oversight committee that he believed the JSC acted unconstitutionally in assigning magistrates to oversee Nasheed’s trial.

“In deciding upon the bench, the JSC did follow its rules of procedures. That is, 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.

During a visit to the Maldives in February, United Nations Special Rapporteur (UNSR) on the Independence of Judges and Lawyers Gabriela Knaul also criticised the appointment of judges to the magistrate court bench..

“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 told press after delivering her statement.

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