Members of the Judicial Council raised doubts over the legitimacy of the Hulhumale’ Magistrate Court at a meeting in late 2010 and decided that criminal cases were out of its jurisdiction, former President Mohamed Nasheed’s legal team have revealed.
In a press statement, Nasheed’s legal team said that minutes from a meeting of the Judicial Council were among documents submitted by the Judicial Service Commission (JSC) to the High Court.
The JSC entered as a third party into an appeal lodged by Nasheed at the High Court challenging a ruling by the Hulhumale’ Magistrate Court, which had summarily dismissed procedural points raised by the former President’s lawyers.
The procedural issues included the legal status of the magistrate court.
However, before the High Court was due to issue a ruling on Nasheed’s appeal, the Supreme Court instructed the High Court to suspend proceedings as the apex court had been asked to determine the legitimacy of the Hulhumale’ Magistrate Court.
The Judicial Council minutes meanwhile revealed that Chief Justice Ahmed Faiz, former Chief Judge of the High Court Abdul Gani, former Chief Judge of the Juvenile Court Shuaib Hussain Zakariyya, Magistrate Mohamed Niyaz from the north judicial district and Magistrate Ali Shareef from the south judicial district “all raised questions over the legitimacy of the Hulhumale’ court.”
The Judicial Council was abolished after the Supreme Court unilaterally struck down articles in the Judicature Act concerning the council.
“Presenting the case [to the council], the Chief Justice said that following the enactment of the law on courts, members of the judiciary as well as lawyers were saying that the court in Hulhumale’ could not function under the law and that the Hulhumale’ court had been stopped following the passage of the [Judicature Act in 2010],” the press release explained.
The Judicature Act states that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court and Juvenile Court).
According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island. The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified.
Moreover, the minutes revealed that the Judicial Council had decided that criminal cases were out of the Hulhumale’ Magistrate Court’s jurisdiction.
The Chief Justice had said at the Judicial Council meeting that the magistrate court had been dealing with civil cases and family disputes.
The press statement noted that it was the opinion on record of all judges at the council meeting that the Hulhumale’ court could not function as a separate court following the enactment of the Judicature Act.
Supreme Court intervention
Nasheed’s legal team also expressed concern with the Supreme Court ordering the High Court to suspend hearings on the appeal.
If the Supreme Court decides to take over the procedural point raised at the High Court, “President Nasheed would lose one stage of appeal,” the legal team said.
However, the Supreme Court last week instructed the magistrate court to resume the cases and took over a case filed at the Civil Court a year ago by a lawyer, Ismail Visham, contesting the legitimacy of the Hulhumale’ Magistrate Court.
Speaking to press yesterday after a ceremony to open new offices for the Drug Court, Chief Justice Faiz criticized the JSC as “inept” and contended that “challenges faced by the judiciary would have been resolved” if the judicial watchdog body “properly” carried out its responsibilities.
Faiz also said that the case concerning the legitimacy of the Hulhumale Magistrate Court presently before the Supreme Court had not been addressed before because the JSC had not filed the case.
“When a case was filed in Civil Court contesting the legitimacy of Hulhumale Magistrate Court, the JSC sent a letter to [the Supreme Court] arguing that the Civil Court did not have the jurisdiction to look into the case. We then asked the JSC to file a case as per the procedure and they only filed the case just a few days ago,” he explained.
The Chief Justice added that the Supreme Court would be considering the case as a “high priority”.
The JSC filed the case while Nasheed’s appeal was ongoing at the High Court.
Meanwhile, MP Mariya Ahmed Didi, former President Nasheed’s spokesperson, said that the Supreme Court deciding on the legitimacy of the Hulhumale’ Magistrate Court without allowing the High Court to rule on Nasheed’s appeal would “give weight to what many are saying about the politicization of the Supreme Court.”
The former Special Majlis MP urged the highest court of appeal to allow the High Court to issue a ruling as those unhappy with the judgment could appeal at the Supreme Court.